Best Interests Review and Finding Required in Tennessee Divorce and Custody Cases

January 4, 2013
By The McKellar Law Firm, PLLC on January 4, 2013 4:48 PM |

In the case of Hardin v. Hardin, No. W2012-00273-COA-R3-CV, filed December 27, 2012, Tennessee divorce attorneys learn that a trial court's ruling can be vacated if a specific best interest finding is not properly noted in the record.

Facts: The parties divorced in 2009. In 2011, Father filed a Petition to Modify the Parenting Plan, Petition for Temporary Restraining Order ("TRO") and Petition for Contempt, alleging that he had been the primary caretaker for the child 75% of the time, and therefore the parties had not been following the Plan. He also alleged Mother had several paramours, that Mother had exposed the child to cigarette smoke and Mother had moved in with a third party due to financial constraints, and that this new residence was not appropriate. A TRO was entered, giving Father primary parenting responsibility and allowing Mother two days per week of co-parenting. Mother then also filed requesting to change the parenting plan and alleged Father was in contempt for failure to pay child support. After a trial, the court named Father the primary residential parent ("PRP"), stated a material change of circumstances existed and awarded Mother standard visitation. Mother appealed.

Issues: Mother argues that the trial court committed error in failing to consider the factors found in T.C.A. §36-6-106 and therefore also failed to correctly use a best interests standard. Father requested his attorneys fees.

Analysis: When courts modify an existing parenting plan or custody order, they must go through two steps. First, a material change of circumstances must be found under T.C.A. 36-6-101, and if so, whether a modification is in the child's best interests (T.C.A. §36-6-106) pursuant to the factors found in T.C.A. 36-6-404. These factors include: character and physical and emotional fitness of each parent, continuity, history of who was primary caretaker and emotional bond, among others.

Mother argues the trial court failed to make a best interests finding. The Appeals Court agreed. Accordingly, the trial court's order was vacated and remanded for entry of an order complying with Rule 52.01 of the Tennessee Rules of Civil Procedure (which requires the trial court to make specific findings of facts and conclusions of law). Moreover, the Appeals Courts notes this is not a "mere technicality" but instead gives the basis upon which the court reached the decision, which speeds up the appellate process. The trial court erred in failing to making a best interests finding and failing to apparently consider any of the statutory factors. Any evidence of the court doing so was omitted from the record. Father's attorney fee request was denied due to Mother's claims having been found meritorious.