September 2012 Archives


Determining the Primary Residential Parent in Tennessee

September 28, 2012 by The McKellar Law Firm, PLLC

In Henson v. Henson, No. W2011-02504-COA-R3-CV (Tenn. Ct. App. July 30, 2012), Tennessee divorce attorneys learn that courts select the primary residential parent in a manner that "give[s] each parent the maximum amount of time possible with the child, in accordance with the child's best interests," pursuant to Tenn. Code Ann. Section 36-6-106(a).

The facts of the case are as follows: The parties had two minor children. After a divorce, Father lived in a three-bedroom mobile home with six other people, most of whom were relatives. While Mother initially moved in with her mother, she later moved to a motel room where she did not have a kitchen; although the minor children had never met her boyfriend, she used his kitchen to cook for them. Mother had a job as a maid in the motel where she lived. Both minor children had been prescribed medication for attention deficit disorder and were involved in special education programs for learning disabilities. Mother was attentive to their medication and was primarily responsible for transporting the children to school and doctor visits.

At trial, the minor children each testified that Father's brother did not treat them well, that Father's house was crowded, and they would rather live with Mother. Father's testimony indicated that he was not aware of the children's medications or dosage. The parties' adult daughter's boyfriend (whose relationship with Mother was tense and who later moved in with Father) testified he had lived with Mother and her boyfriend and had witnessed them smoking marijuana, drinking alcohol, and stealing. At the conclusion of the trial, the court designated Mother the primary parent, also providing that there was to be no alcohol consumption in front of the minor children on the part of either party and that Mother's boyfriend was not to see the children.

The appellate court decided the sole issue of whether Mother or Father should be the primary residential parent.

On appeal, the Court stated its preference for joint parenting and referenced Tenn. Code Ann. Section 36-6-106(a), which provides that in accordance with the best interests of the child, "the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with [certain] factors... [such as] the location of the residences of the parents, the child's need for stability" and other "relevant factors." Factors that the court will consider pursuant to Tenn. Code Ann. Section 36-6-404(b) include: "the parent's ability to instruct, inspire, and encourage; relative strength, nature, and stability of the child's relationship with each parent; the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care; the degree to which a parent has been the primary caregiver; the love, affection, and emotional ties existing; the emotional needs and developmental level of the child; the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; the character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; the reasonable preference of the child if twelve (12) years of age or older/the preference of older children should normally be given greater weight than those of younger children; each parent's employment schedule; and any other factors deemed relevant by the court."

Emphasizing the minor children's need for "stability and continuity", the appellate court affirmed that Mother was the appropriate choice for primary residential parent. Mother served as the primary caregiver, provided transportation, and was aware of the medication that the minor children required. Mother supervised the children, cooked for them, and only went to her boyfriend's house to do laundry and cook (never introducing the children to her boyfriend). Both children preferred to live with Mother instead of at Father's residence, where it was crowded, they were unsupervised and lacked structure, and they were subjected to insults from Father's brother. At Father's residence, the parties' adult daughter (who has a child and who has a mental illness for which she is on medication) was primarily responsible for watching the minor children on account of Father's employment schedule; the parties' adult daughter felt overwhelmed with the additional responsibility of caring for her younger brothers. Therefore, the court scheduled the minor children to spend time with Father on weekends and Mother during the week.


Transfer of Custody: Evaluating a Material Change of Circumstances and the Best Interests of the Child

September 24, 2012 by The McKellar Law Firm, PLLC


In Herbert v. Harding, No. M2011-00419-COA-R3-CV (Tenn. Ct. App. Aug. 17, 2012), Tennessee divorce attorneys learn the manner in which courts assess a material change of circumstances and the best interests of the child in the context of transferring custody.

The facts of the case are as follows: The parties never lived together and were never married but had one child together. When Mother requested public assistance, the Department of Children's Services (DCS) initiated paternity proceedings against Father, who was ultimately required via an agreed order of paternity and support to pay future child support and make installment payments on past due child support. Mother obtained custody via the agreed order. Originally, Father did not make support payments as required; thus, he was held in criminal contempt and ordered to make payments. For nearly ten years Father successfully paid child support. Father is now married and has a second child and resides with his family in a four-bedroom home. Mother (who often moved to different apartments) told Father in 2008 that she was moving and requested that he "take care" of the parties' minor child "for a few weeks." Subsequently, Father enrolled the child in middle school (where the child was a good student), Boy Scouts, and football. The child remained with Father for six months, during which time Mother searched for housing while living with a church member. In spite of the fact that Mother was not responsible for the minor child during these six months, she remain on public assistance and claimed the child on her taxes; Mother also continued to receive child support payments from him.

Asserting that the minor child was thriving with him but was adversely impacted by "Mother's unstable home life and frequent moves," Father requested a transfer of custody by filing a petition. The court granted Father's additional request for a temporary restraining order preventing Mother from removing the child from school or "interfering with [Father's] peaceful possession of the child." Mother claimed that the child's best interests mandated that he continue in her custody and that no material change of circumstances had occurred.

The trial court's Statement of Evidence revealed conflicting testimony regarding Mother's moves and Father's relationship with the child. The minor child typically did well in school while in Mother's custody, but in a fourth grade accelerated program he was frequently late, had numerous absences, and his grades plummeted. Since the child had been with Father, he had done well in school and Father repeatedly attended his extracurricular activities. Testimony revealed that the minor child had been present in 2004 when Mother was arrested and convicted for shoplifting, and that Mother had been arrested and convicted a second time for shoplifting. Additional testimony indicated that the minor child was suspended in 2009 for stealing money from a classroom fundraiser box and referenced his mother's habit for stealing (but said that "Father broke him from doing that.") Mother also failed to fulfill her promises to attend the minor child's football games. The child testified that he preferred to be in Mother's primary custody and that the arrangement with Father seemed temporary. The trial court, referencing Tenn. Code Ann. Section 36-6-106(a), evaluated the best interests of the child factors and found the existence of a material change of circumstances; thus, it awarded Father custody.

On appeal, the court considered the following issues pertaining to transfer of custody: "(1) whether a material change of circumstances had occurred; and (2) whether the transfer of custody or residential schedule was in the child's best interest."
First, the appellate court referenced the factors that the Tennessee Supreme Court has provided that courts should use to determine whether a material change of circumstances has arisen: "(1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child's well-being in a meaningful way."

The appellate court found that Mother's unanticipated request that Father supervise the minor child "for an indefinite period of time" constituted a material change in circumstances and that the minor child's well-being benefitted from Father's supervision. The court expressed concern about Mother's history of shoplifting and the fact that the child had indicated that she frequently stole. Second, to determine the best interest of the child, the court evaluated the custody factors provided in Tenn. Code Ann. 36-6-106(a) in the context of the case at hand as follows: (1) Love and affection and emotional ties during the first part of the child's life favored Mother as the primary caregiver... in June 2008 the relationship with the child favored Father; (2) The disposition of the parents to provide the necessities for the child were equal; (3) Continuity in the child's life favored Father; (4) Stability of the family unit slightly favored Father; (5) The mental and physical health of the parents were equal; (6) The home, school and community record of the child more recently favors Father; (7) The preference of the child favors Mother; (8) The physical and emotional safety of the child favors Father due to Mother's conviction of a crime committed in the presence of the child; (9) The character of others who interact with the child favors Father; (10) Past and future potential performance of parenting responsibility slightly favors Mother. Regardless of Mother's reasoning for leaving the child with his Father, the appellate court upheld the decision to grant Father custody in conformity with the best interests of the child.



Visitation Extended Even After Repeated Late Drop-offs, Exigent Circumstances Shown

September 12, 2012 by The McKellar Law Firm, PLLC

In Elcan v. Elcan, No. M2011-00530-COA-R3-CV (Tenn. Ct. App. March 7, 2012), Tennessee divorce attorneys learn the factors courts consider in determining whether modification of a parenting plan is appropriate pursuant to Tenn. Code Ann. Section 36-6-101(a).

The facts of the case are as follows: The court designated Mother the primary residential parent of the three minor children in a post-divorce parenting plan. One provision of the plan gave Father the right to drive the children to school three days per week and two hours of visitation on Wednesday nights. Numerous criminal contempt petitions were filed on the part of both parties, and the trial court found Father liable for fourteen counts of criminal contempt for the fourteen times that he returned the children to their Mother later than 7:00pm on Wednesday nights. The court determined that Father could exchange his right under the parenting plan to drive the minor children to school three days per week for the right to keep the children overnight on Wednesdays and drive them to school on Thursday mornings. The court further stated via restraining order that when the children were present, each party was not permitted to have overnight guests of the opposite sex "under inappropriate circumstances." Later, the court modified this "vague" order to restrain Father from having members of the opposite sex "stay overnight in the same bed with him" while he kept the children after Mother accused Father of sleeping with his girlfriend many times while he supervised the minor children; on this occasion, the court refused to terminate Father's Wednesday overnight parenting time or penalize Father on account of its finding that the children benefited from the time they shared with Father on Wednesday nights.

The appellate court was asked to decide the following issues: (1) Whether the court was justified in modifying the parenting plan to provide Father with overnight visitation on Wednesday nights; and (2) Whether the court was justified in declining re-modification of the plan after Father shared a bed with his girlfriend (allegedly in contempt of court).
First, the appellate court referenced that Tenn. Code Ann. Section 36-6-101(a)(2)(C) explains what constitutes a material change of circumstance warranting modification of a residential parenting schedule: "The petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent's living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child."

The court elaborated that it would primarily consider the child's best interest (rather than what each parent wanted) in evaluating the "very low threshold" of material change of circumstance, and stated that in this case, the modification occurred because Father was consistently (yet understandably) late in returning the children to Mother on Wednesday nights; he had only two hours during which to coach the soccer team of one child, cook dinner, spend time with the children, and assist the children with finishing homework, which was further complicated by the fact that the children did not wish to leave Father's care at the end of the allotted time. The appellate court affirmed the trial court's rationale that if the children stayed Wednesday nights with Father, they would have an earlier bedtime and not consistently feel hurried during their time with Father; the appellate court provided that the overnight Wednesday visits could continue unless the children struggled in school or failed to get enough sleep. Second, the appellate court mentioned the testimony of both parties regarding re-modification, but ultimately found that Wednesday overnight visitation improved the quality of the time Father and children spent together as well as their relationship. Noting the trial court acknowledged that transportation would be an inconvenience and that difficulties would likely result from the children forgetting school books or clothing, the appellate court nevertheless affirmed Father's Wednesday night visits since the children were almost never late to school, continued to succeed in school, and enjoyed the Wednesday nights with Father.