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Child's Preference Not A Deciding Factor in Tennessee Custody Decisions

October 11, 2013 by The McKellar Law Firm, PLLC

In the case titled Carter v. Carter, No. M2013-00193-COA-R3-CV Slip Copy, 2013 WL 5568360 (Tenn. Ct. App. Oct. 7, 2013) Knoxville divorce attorneys learn how much bearing a minor child's preference has on the court in regards to modification of a parenting plan and when it is appropriate to disqualify an attorney from representation in a matter.

Facts

The parties divorced in 2006. Mother was named the primary residential parent ("PRP"), with Father awarded 85 days of parenting time per year. In July 2009 Mother filed a petition to modify child support, and then filed a notice of appeal of the trial court's findings on the matter in February 2012. However, just prior to filing the notice of appeal, she filed a motion to modify parenting time alleging a material change in circumstances.

In her petition to modify the parenting plan, Mother alleged that the parenting schedule (which gave Father Tuesdays and every other weekend) "inappropriately interfere[d] with the school, extracurricular and social activities in which the minor child of the parties engage[d] and/or wishe[d] to engage in at [that] time."

The attorney that filed Mother's petition to modify was her new husband. Father filed a motion to disqualify him as counsel for "any matter related to the modification of the parties' permanent parenting plan." The trial court agreed with Father and, subsequently, entered an order ruling that, "[Mother's attorney] shall be disqualified from representing [Mother] in any pending or new matters in this case." After the trial court disqualified Mother's counsel, a hearing was held on her petition to modify the parenting plan. The trial court ruled that Father's Tuesday night parenting time be eliminated. Mother filed a motion to alter or amend the trial court's order, but it was denied. She immediately appealed.

Analysis

On appeal, Mother averred that the trial court erred in refusing to allow the parties' 16-year-old daughter the ability to determine when and whether she would have parenting time with Father and in disqualifying her new husband as her counsel in the petition to modify and any new filings in the matter.

Trial courts have broad discretion in regards to parenting arrangements due to the unique circumstances in each case. See Eldridge v. Eldridge, 42 W.W.3d 82, 85 (Tenn. 2001); Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006). An abuse of discretion occurs "only when the trial court's ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record." Id. at 88.

Tenn. Code Ann. § 36-6-101(a)(2)(C) states that with respect to a change in parenting time (but not the PRP), "[a] material change of circumstance does not require a showing of a substantial risk of harm to the child." Instead, it "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[s] 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." Per Rose v. Lashlee, No. M2005-00361-COA-R3-CV, 2006 WL 2390980 at *2 n.3 (Tenn. Ct. App. Aug. 18, 2006), the threshold to prove a material change of circumstances requires showing the court that the current plan is not working for the parties.

Whether this case had a material change of circumstances warranting a modification of the parenting plan was not an issue before the appellate court. However, Mother averred that the trial court erred in disallowing the minor child to determine when and how she will spend parenting time with Father as this was not in the best interest of the child. While Tenn. Code Ann. § 36-6-404(14) does allow a child that is age 12 or older to express their preference regarding parenting time to the court, there is no statute or precedent that gives a minor child discretion to determine when he or she will or will not see a parent. A child's preference is one of many factors the trial court may consider. Therefore the trial court's ruling is affirmed.

The next issue before the court was to determine if the trial court erred in disqualifying Mother's husband as her counsel in the petition to modify hearing and any subsequent filings in the matter. Per Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001), an abuse of discretion standard is used by the appellate court when reviewing a trial court's decision to disqualify an attorney.

In the trial court's order disqualifying Mother's husband as counsel, it cited Rule 3.7 of the Tennessee Rules of Professional Conduct. This rule provides that a "lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness..." Tenn. Sup. Ct. R. 8, RPC 3.7. Father's counsel notified the trial court that he did intend to call Mother's husband as a fact witness in the modification matter. In her appeal, Mother pointed out that her husband/counsel was never called or deposed as a witness. The appellate court found this argument to be invalid, as the rule does not require the attorney to be called as a witness; it simply requires it to be shown that he was likely to be a necessary witness.

The trial court did not simply disqualify Mother's new husband from representing her in the modification hearing. In its ruling it stated that he was also disqualified from representing her in any "new matters in the case." The appellate court found this to be an abuse of the trial court's discretion, because disqualification of counsel must be determined based on the specific matters being litigated in a case at that time, and not future matters.

Conclusion

The appellate court affirmed the trial court's ruling in regards to the modification of the parenting plan. It also affirmed the trial court's ruling disqualifying Mother's new husband from acting as her counsel in the modification proceeding. However, the appellate court reversed the trial court's ruling disqualifying Mother's husband as counsel in any "new matters in the case," as that will need to be determined as the issues arise.


Court's Refusal to Grant Continuance Due to Counsel's Conflict of Interest Found To Be Reversible Error

September 20, 2013 by The McKellar Law Firm, PLLC

In the case titled In re: M.J.H, Hart v. Lewis, NO. W2012-01281-COA-R3-JV Slip Copy, 2013 WL 3227044 (Tenn. Ct. App. June 25, 2013) Knoxville family law attorneys learn what constitutes a conflict of interest in a custody matter and when it is appropriate for a court to continue a matter when a conflict of interest for an attorney arises.

Facts When M.J.H. was conceived Mother was married; however, she was also having an extramarital affair. She did not believe her paramour to be the biological father of M.J.H. as he told her that he had a vasectomy. For the first two years of M.J.H.'s life, Mother and her husband raised the child together. After two years Mother and her husband commenced divorce proceedings. DNA testing was done, and the paramour was proven to be the biological father. Mother filed a parentage petition in juvenile court asking for DNA testing, to establish a biological father, designate Mother as the primary residential parent, grant Father supervised visitation, and set support. Prior to the hearing, the parties separated and Father hired his own attorney.

At the hearing, Mother's attorney explained that he had a conflict as he had met with both Mother and Father in the early stages of litigation when it was thought the petition was agreed upon. Opposing counsel advised the court that he would not object to a continuance to allow Mother to retain new counsel. Mother's counsel also advised the court that he was representing both Mother and her husband in their agreed divorce, and that while the divorce was almost complete, this created another conflict with the juvenile court litigation.

Despite this information, the trial court held a hearing, with no no sworn testimony, exhibits, or evidence. Instead the hearing was held as a conversation between the judge, attorneys, and clients. On several occasions, Mother's attorney requested the court to enter temporary orders of support and visitation, so the parties could have time to discuss the issues further. However, the court decided to proceed stating there was "no sense in us coming back if we can get it done right now." The court then created a parenting plan appointing Mother as the primary residential parent and granting father visitation; Father was established as M.J.H.'s biological father; M.J.H.'s surname was changed to Father's last name despite this not being part of the petition, and child support was set at $383 per month despite no evidence of Father's income being shown. A child support arrearage was determined by the court to begin when Mother left Father's home. The court then instructed the parties to let it know if they disagreed with any of the information as it was going to make these items an Order of the court. At that point, Mother's attorney again tried to get the court to recognize his conflict of interest in the matter; however, the trial court ignored it.

About a month later, Father filed a Motion for Contempt, averring Mother had not changed the child's last name per the court's order. On the same day, Mother's attorney filed a Motion to Withdraw. Mother hired new counsel who filed a Petition to Vacate the court's order pursuant to Rule 34 of the Tennessee Rules of Juvenile Procedure. Mother cited the following as reasons for the court's order to be vacated: the order was not final because she did not sign it; Attorney's signature on the order was not valid as he was not representing her at the hearing; Mother never received a copy of the order; Father did not submit proof that changing M.J.H.'s last name was in the child's best interest; the child support arrearage was not valid; the court failed to issue written findings as required in regards to its deviation from child support guidelines for the arrearage amount; the child support obligation was set based on incomplete and/or erroneous information and should be reconsidered.

At the beginning of the hearing on the matter, the trial judge let Mother know he was not receptive to her petition. He then recapped the prior hearing from which the order originated and advised Mother that the prior attorney did represent her interests at the hearing. He further pointed out that Mother did not object to her representation at that time, and the prior attorney did not withdraw from the case until two months after the hearing.

The Judge inaccurately stated that the burden of proof was on Mother to show that it was in the best interest of the child not to change the last name of M.J.H. Mother's new attorney respectfully disagreed and pointed out that the burden was actually on Father. Mother's attorney further averred that the order to change the name had to be vacated because it was not relief sought in the parentage petition, and Father did not submit any evidence to support his position.

Moving forward, the Court advised Mother, "[w]ell, it's your motion to modify the child support. You should have the proof with you to show that what he is entering is not right." Mother's attorney attempted to correct the court, advising that Mother's petition was to vacate, not modify. The judge then denied Mother's petition in its entirety, and changed M.J.H.'s surname to Lewis (Father's last name). Mother appealed the decision.

While the appeal was pending and more than one year after the appeal was filed, the trial court filed an eighteen page order titled "Amended Finding of Fact and Response to the Finding of Fact and Order of April 25, 2012." In this order the trial court averred that it had listened to recordings of the original hearing when Mother's attorney attempted to withdraw, and it realized the order entered from that hearing should have been an agreed order instead of just an order. It went on to explain its impressions and reasons from that trial in detail which were not explained during the hearing.

Mother then filed a motion with the appellate court asking it to supplement the appellate record with the new order and strike the order for lack of jurisdiction. The appellate court ordered Father to file a response to Mother's motion and gave additional time at oral arguments to address the issue.

Analysis
On appeal the appellate court had several issues to decide with the most prudent being whether the trial court should have proceeded in a hearing regarding paternity when Mother's attorney attempted to withdraw due to a conflict of interest after having conferred with both Mother and Father when the parentage petition was agreed upon.

Mother based her motion to vacate on Rule 34 of the Tennessee Rules of Juvenile Procedure. This rule permits relief from judgment or orders when there are the following: if the order was obtained via fraud or mistake; clerical error; if the court did not have proper jurisdiction over the matter; or if there was a change in circumstances regarding the best interests of the child. Rule 60 of the Tennessee Rules of Civil Procedure also governs relief from judgments or orders. Rule 60.02 gives five grounds on which relief may be sought:

1. Mistake, inadvertence, surprise or excusable neglect;
2. Fraud,...misrepresentation, or other misconduct of an adverse party;
3. The judgment is void;
4. The judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or
5. Any other reason justifying relief from the operation of the judgment.

When reviewing a denial of a motion for relief from a judgment by a trial court, the appellate court follows Rule 34 of Tennessee Rules of Juvenile Procedure or Rule 60.02 of Tennessee Rules of Civil Procedure which dictates an abuse of discretion standard. This is defined as only being found when "...the trial court applied incorrect legal standards, reached an illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party."

The appellate court found that Mother's attorney had an obvious conflict and was correct to request to withdraw from the matter and that the trial court committed error in "steamrolling" through the hearing despite having this information.

Father's argument that Mother did not object to the hearing proceeding was rejected by the appellate court as Mother was not a pro se litigant, because the court did not permit her attorney to withdraw. Therefore, she could not have objected.

Conclusion

The appellate court found the trial court to have abused its discretion in refusing to continue the hearing to allow Mother's attorney to withdraw and Mother to retain new counsel. Therefore, the order from the hearing was vacated and the trial court's denial of Mother's motion to vacate was reversed.


Judges Must Follow Statutory Instruction to "Maximize Co-Parenting Time" for Both Parents in Tennessee

August 7, 2013 by The McKellar Law Firm, PLLC

In the case of McDaniel v, McDaniel, No. M2012-01892-COA-R3-CV (Tenn. Ct. App. July 29, 2013) out of Rutherford County, Tennessee, Knoxville divorce attorneys learn that trial courts must maximize the co-parenting time of both parents so long as that is in the children's best interests, and a trial court's failure to do so can result in reversal and remand for determination of a new plan.

Facts: The parties married in 1994 and Mother filed for divorce in 2011. After a trial, the marital residence was awarded to Father (Father desired it and Mother could not afford it) and because of that, with all other factors being equal, Father was designated primary residential parent "PRP" with Mother having 120 days per year. Mother appealed the PRP designation and the parenting schedule.

Analysis: T.C.A. 36-6-404 and T.C.A. 36-6-106 both contain a list of factors a trial court must look at to determine (the two lists are "substantially similar"). Here, the trial court found the following:
• Both parents showed they were caring, loving, motivated and active in the children's lives
• Mother , who did not work, provided care for the children when not in school or daycare
• Mother organized the parties' finances
• Father regularly "took over" parenting duties when he came home from work, and Mother would leave and run errands for the household
• Two witnesses testified that Father was the primary caregiver
• Both parties testified it would be important for the children to remain in the marital residence
• At the time of trial, when Father was awarded the martial residence, Mother did not have alternate living arrangements but was hopeful she could obtain housing nearby.
T.C.A. 36-6-106 allows trial courts to look at the contemplated future residences of the parents as well as the factor of continuity in the children's lives. Here, continuity weighed heavily in favor of Father. Accordingly, the trial court did not err in designating Father PRP.

T.C.A. 36-6-106 also states that in light of the children's best interests, the court should implement a plan that allows each parent to have "maximum participation" in the children' s lives. However, the trial court only awarded Mother 120 days, even though Father' s proposed parenting plan gave her 159, with no explanation for why that was appropriate. Accordingly, the Appellate Court could not find that the 120 days with Mother was in the children's best interests and reversed and remand. The trial court was directed to put down a parenting schedule that maximized participation of both parents.


New Change in Tennessee Statute Tightens Requirements for Notice of Parental Relocation

Knoxville family lawyers and clients need to know about a recent change to an important state statute.

T.C.A. §36-6-108 governs the processes and procedures for co-parents who want or need to relocate outside of Tennessee or more than 100 miles from the other parent. The statute requires the parent desiring to relocate to send the other parent notice sixty (60) days prior to the move. That notice must contain the following information: (1) statement of intent to move; (2) location of proposed new residence; (3) reasons for proposed relocation; and (4) a statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice. Then, if there is no agreed upon schedule or consent to the move, litigation ensues. Either the relocating parent must file a Petition to Modify the Parenting Plan or the parent opposing the move must file a Petition in Opposition to the Relocation.

However, as of July 1, 2013, this statute will begin be applicable to all relocations that are 50 miles from the other parent, instead of 100 miles. This could mean that more parents will have to either agree upon or litigate new parenting plans. See the new statute change here.

If no agreement is reached, the statute tells trial courts to "consider all relevant factors, including the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation."

Those factors can include: (1) the history of visitation; (2) If the primary residential parent, is likely to abide by a new schedule; (3) The love, affection and emotional ties; (4) Ability of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (5) Continuity; (6) Stability of the family unit; (7) The mental and physical health of the parents; (8) The home, school and community record of the child; (9) (A) The reasonable preference of the child if twelve (12) years of age or older; (B) The court may hear the preference of a younger child upon request. (10) Physical or emotional abuse to the child, to the other parent or to any other person; and (11) 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.

Of course, mediation will still be required by the Courts before a trial unless exigent circumstances exist.


Rare Tennessee Case Where Primary Parent Designation is Split Between Siblings

In the case titled Maupin v. Maupin, No. E2011-01968-COA-R3-CV, 2013 WL 1803602 (Tenn. Ct. App. Apr. 29, 2013) Knoxville divorce attorneys learn in what instances the primary parent designation ("PRP") can be split between parents and siblings, whether foreclosure liability is appropriate for the spouse who was not awarded the property, and when retroactive child support is appropriate.

Facts:Husband and Wife were married in 1993 and had three (3) children who were minors at the time of the divorce. For the first five (5) years of the marriage, Husband was unemployed and helped his parents on their farm; Wife worked at a hospital and sold jewelry on the side for extra income. Wife admitted to an affair in2007 and agreed to end it to save the marriage. Husband gave up farming to spend more time with Wife, and both attended marriage counseling sessions. However, Wife continued her affair Wife filed for divorce in 2008.

After considering testimony of two psychological experts and a guardian ad litem regarding the breakdown of Father's relationship with the daughter and Mother's relationship with the couple's two sons, the trial court designated Mother the PRP for the daughter and Father the PRP for the two sons. However, the court did stipulate that there be a co-parenting schedule to facilitate shared time together for the siblings on "weekends, holidays, and other vacation periods." Mother was ordered to pay $594 per month in child support based on the court determined income of $4,902 per month for Wife and $2,360 per month for Father. Two permanent parenting plans ("PPP") (one for the daughter and one for the sons) were entered with the court that were almost identical. Both allowed the PRP 247 parenting days with the other parent receiving 118 parenting days. Both plans included a supplemental provision requiring the family to enroll in counseling.

When determining assets, trial court's typically review a schedule of assets and liabilities submitted by both parties; however, Husband never submitted this information to the court in this case. Despite lacking this information, the court awarded Husband 20% of Mother's retirement fund and made the parties equally responsible for any joint credit card balances and a timeshare that was foreclosed on. Husband was awarded the marital residence valued at $175,000 with a mortgage balance of $223,834. The court ordered Husband "solely responsible for paying the indebtedness owed with regard to the [marital residence], holding [Wife] harmless from any liability in connection therewith"; however, in its ruling the court stipulated "the parties shall be equally responsible for paying any deficiency balance due" in the event of a foreclosure.

Husband filed a motion requesting retroactive child support to the date of separation which the court granted. Wife filed a motion for contempt alleging she had received no parenting time with her sons. The court scheduled an evidentiary hearing to determine if Husband was in contempt for failure to follow the "PPP." After hearing testimony from Husband and Wife, the court determined Husband had encouraged the two sons to go with Wife for visitation, but the children did not want to go. Therefore, it was reasoned that Husband was not in contempt of the court ordered PPP. Wife appealed the trial court's decision.

Analysis and Conclusion: On appeal the court had to determine the following:

• Whether the trial court erred in ordering Wife the PRP for one minor child and ordering Husband PRP of the other two children
• Whether the trial court erred in awarding Husband the marital home with the condition he assume the mortgage while stipulating Wife would be held responsible for on-half of the debt should the home be foreclosed
• Whether the court erred in awarding Husband retroactive child support to April 2009

On the issue of PRP, Wife argued that Husband refused to encourage the two sons for which he was PRP to have a relationship with her. She averred that Husband was turning the children against her. Husband argued that Wife brought the situation on herself by having an affair. In looking at the best interests of the children and applying that standard, the appellate court determined the trial court did not err in its discretion appointing Husband the PRP of the boys considering their animosity toward Wife. However, it did modify the parenting plan to require "appropriate, professional counseling" and remanded the case back to the trial court to have a hearing to appoint a therapist to develop a counseling program and therapy sessions with the parents. Both parents and all three children were ordered to attend the counseling.

On the issue of retroactive child support, Wife averred that she contributed to providing for the children during the separation period and trial for the divorce; yet, she was not seeing her sons. Husband pointed out that the guidelines for child support state a child support award is effective as of the date of separation unless there is a reason to deviate. The appellate court agreed with Husband's argument and found no reason to deviate from the guidelines. The trial court's decision was affirmed on this issue.

In determining Wife's final argument that the trial court erred in holding her responsible for one-half of the mortgage of the martial home in the event of foreclosure while awarding Husband said home, the appellate court found the trial court's opinion to be ambiguous. Father argued the divorce left him in financial ruin; Mother argued the trial court's opinion was inconsistent as it awarded Husband the home and the mortgage, but allowed that debt to come back on her in the event of a foreclosure. From the record the appellate court found that Husband had hidden assets during the divorce trial, finding he had approximately $200,000 in martial assets of which some were gambled away. The appellate court reversed the trial court's decision, stating Wife should be held harmless from any foreclosure debt on the marital home.


Relief from Default Judgment Difficult, Not Impossible

In the case of Butler v. Vinsant, No. M2012-01553-COA-R3-JV (Tenn. Ct. App. April 15, 2013), Knoxville divorce lawyers learn that obtaining relief from a default judgment requires proof of mistake, inadvertence, surprise or excusable neglect.

Facts: In 2010, Mother filed a Petition to Set Child Support against Mr. Vinsant, the alleged biological father in Juvenile Court. Father filed a Response admitting paternity but denying that he owed support due to the fact that the children resided with him the majority of the time. Simultaneously but under a different docket number, Father also filed a Petition to Legitimate and for Custody, requesting that he be named the primary parent. The two actions were consolidated and Mother was allowed to amend her petition to include custody. Mother then filed an Amended Petition asking to be the primary parent. Meanwhile, Father's attorney withdrew. Father never filed an Answer to Mother's Amended Petition, so Mother filed a Motion for Default Judgment and set a hearing. Father failed to appear at that hearing. The trial court found the following: Mother was entitled to a default based upon Father' s failure to answer or appear; that Father's paternity was established; that Mother was primary residential parent with Father having every-other-weekend visitation; that child support was set and Mother was awarded an arrearage.

Father then filed a Rule 60.02 Motion to Vacate Default Judgment. In said Motion, Father provided affidavits stating that his failure to answer or appear was excusable because his prior attorney failed to forward his file to the new counsel. The Rule 60.02 motion was denied by the trial court and Father appealed.

Analysis: Rule 60.02 of the Tennessee Rules of Civil Procedure states that a court may relieve a party from a final judgment or order based upon mistake, inadvertence, surprise or excusable neglect. A trial court's ruling shall only be overturned upon a finding of abuse of discretion (meaning application of an incorrect legal standard, an illogical conclusion, a clearly erroneous assessment of the evidence or reasoning causing injustice to the complaining party).

Further, three factors are used to determine if the default should be vacated: whether the default was willful; whether there was a meritorious defense; and whether the other party would be prejudiced.

Here, the Appeals Court found that Father only had a meritorious defense regarding the custody issue. The evidence in the record submitted by Father - an affidavit and his original petition (which is not evidence by itself) - only contains allegations regarding child custody factors and failed to include facts about his income, child support obligation or arrearage. Further, his Rule 60 Motion fails to dispute or point out any error in the trial court's calculation of child support or the arrearage. However, his Petition avers that he has a loving relationship with the child, and had been the primary caretaker.

Next, the Appeals Court looked to see whether Father's failure to appear and answer was willful. "Willful" means intentional and voluntary rather than accidental and not due to coercion. Father argues he did not have actual notice of the hearing. Therefore, the question becomes whether Father's inaction in promptly obtaining a new attorney and failing to stay updated on the proceedings was willful, less than willful but not excusable, or excusable. Even though Father's first attorney failed to keep Father informed, Father failed to promptly obtain new counsel even after being advised to do so; Father further failed to inform opposing counsel or the court of his lack of representation for several months, until the filing of the Rule 60 Motion. The record also showed that Father ignored his prior attorney's repeated advice to quickly obtain substitute counsel. Therefore, although these actions were not calculated to avoid the court proceedings, the Appellate Court found his actions were not inexcusable, meaning Father is not entitled to any relief under Rule 60.02.


Primary Residential Parent Determination Depends On T.C.A. 36-6-106 Factors

In the case of Wood v. Wood, No. W2012-01250-COA-R3-CV (Tenn. Ct. App. May 16, 2013), Knoxville divorce attorneys learn that trial courts determine the primary residential parent based upon the factors found in T.C.A. 36-6-106.

Facts: The parties married in 2007 and separated in 2010 after having one child together. At the trial, both alleged that the other had an alcohol abuse problem, and Mother additionally alleged that Father was guilty of physical violence as well. Father admitted his DUI conviction, other alcohol related offenses and two arrests for domestic violence that occurred during the marriage. Father alleged that the Mother admitted she had several relationships with different men and had introduced them to the minor child. At the time of trial, Mother worked from 7am to 7pm three days a week, but had a 2 hour commute. Father worked for his parents, who were also proffered as alternate caregivers. However, testimony showed that Father would sometimes leave the child in the care of his parents due to his drinking and social life. Mother also argued that the grandparents interfered with her relationship with the children. The trial court named Father the primary residential parent due to his flexible work schedule and support system. The trial court refused to impute Father's income to account for the free housing provided by his parents as Mother requested. Mother appealed.

Analysis: The Court of Appeals first turns to T.C.A. §36-6-106(a), which outlines the factors a court is supposed to use to determine the primary parent and the co-parenting schedule. Based upon those factors, the Appeals Court made the following analysis: that both parents were devoted to the child and this factor favored neither (same as the trial court); both parents were capable of providing for the child's needs and favors neither party (same as the trial court); that the continuity and stability factor favors Father, due to Mother's many other romantic relationships, Mother have relocated the child twice due to her job changes and Father having lived and worked in the same location continuously (same as the trial court); that stability of the family until also favored Father due to Mother's commute and the closeness of the paternal grandparents (same as the trial court); that the evidence of physical and emotional abuse to the child favored neither party (same as the trial court); all other factors were found to be equal or not applicable. Accordingly, the Appeals Court upheld the trial court's decision to make the Father the primary residential parent.

Next, the Court looked at whether the trial court erred in failing to impute income to Father because he received free housing. The Court found that Mother presented no evidence regarding the reasonable rental value of his home. The Court noted that even if Mother had shown the housing was a fringe benefit of Father's employment, that the Court had no way of determining from the evidence presented how much income to actually impute. Therefore, the trial court was correct in refusing to impute income to Father based upon his free housing in that the record lacked sufficient data with which to do so.


Material Change in Circumstance Necessary to Change Custody Arrangement; Standard for Automatic and Permissive Intervention

April 11, 2013 by The McKellar Law Firm, PLLC

In Garrett v. Garrett, No. E2012-02168-COA-R3-CV (Tenn. Ct. App. April 12, 2013), Tennessee divorce attorneys learn that courts require a material change in circumstances before modifying a permanent parenting plan; however, the material change standard is higher when a party wishes to change the designation of primary residential parent. Further, Tennessee divorce attorneys learn the terms under which a party can intervene in a pending action.

The facts: At the conclusion of a divorce action in Cumberland County, Mother was designated primary residential parent; however, Mother and Father were to share time with the children on a 50/50 basis. Mother then decided that the children should attend a different school nearer to her home. At Father's request, the trial court entered an ex parte order requiring the children to continue attending their original school. However, the local Board of Education averred that pursuant to its policy, the primary residential parent's residence determines which school a child must attend; therefore, the Board filed both a motion to intervene and motion to set aside the order. Mother felt that Father did not comply with the permanent parenting plan requirement that they make decisions jointly and therefore filed a motion to clarify the divorce decree. Father then requested to be named primary residential parent since Mother had disregarded the parenting plan by switching the children's school. After a hearing, the trial court found: (1) Mother violated the permanent parenting plan by switching the children's school; (2) legally, the Board was entitled to intervene; (3) that the children required stability; and (4) Father was designated primary residential parent as it was in the children's best interest.

The Appellate Court asserted that the issue of the Board's intervention, while not raised on appeal, was important. Essentially, if an individual wishes to automatically intervene in an action, he or she is required to establish: (1) that he or she requested to intervene in a timely fashion; (2) that a substantial legal interest in the subject matter of the pending litigation exists; (3) that [the] ability to protect that interest is impaired; and (4) that the parties to the underlying suit cannot adequately represent [that] interest. Tenn. R. Civ. P. 24.01. Further, the Court elaborated that the intervening party must "either gain or lose by direct operation of the judgment," and that the presence of a "mere contingent, remote, or conjectural possibility" that the intervening party will suffer consequences is not sufficient. In applying the above factors to the Board's intervention here, the Court averred that the Board's motion should not have been granted since the Board did not have a "substantial" interest in the case since the standard is "best interest of the child, regardless of any [opposing] policies that may be implicated."
However, there is another standard if a party wishes to permissively intervene, and it can be based on either a statutory conditional right or if "an applicant's claim or defense and the main action have a question of law or fact in common"; courts must assess any "undue[] delay or prejudice" to the original parties that could occur as a result of the intervention. Tenn. R. Civ. P. 24.02. Ultimately, the Court determined that the Board's intervention was not permissive since the trial court considered "the need for stability" while ignoring other factors and also incorrectly afforded more weight to the Board's policy than it did to the best interests of the children or the parents' rights.

Secondly, Mother challenged the fact that the trial court declined to hold an evidentiary hearing and neglected to determine if an unanticipated material change in circumstance occurred before changing the primary residential parent designation. However, Father said that Mother was at fault for not requesting an evidentiary hearing, that Mother's deciding to switch the children's school without consulting him constituted the requisite material change in circumstance, and that the court did not need to list and elaborate on every factor having provided adequate information in support of its findings; therefore, he asserted that Mother's issues should be waived at the appellate court level.

In response to these positions, the Court of Appeals explained that "material change in circumstances" is a standard for any change in custody, with the burden being with the parent who wants to modify; in determining whether such a change has occurred, courts must provide findings "as to the reason and facts" in favor of a decision to modify custody. Tenn. Code Ann. § 36-6-101(a)(2)(B). Also, the "threshold" to modify a primary residential parent designation is higher than that necessary to modify a residential parenting schedule.

The Court expressed that a situation no longer being in a child's best interest or a parent neglecting to follow the parenting plan would both serve as examples of "material change of circumstance." Included among factors that Tennessee courts are required to evaluate are whether: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way."

The Court explained that determining "the best interest of the child" is also crucial when courts are faced with requests to modify custody arrangements. In this case, the Court of Appeals concluded that the trial court neglected to make specific findings of fact regarding an unanticipated material change in circumstances, and that the possibility that the parents would reside outside the same school zone was foreseeable. As such, the Court held that Mother should remain the primary residential parent.


Parental Relocation Request Denied Due to Threat of Emotional Harm, Not in Best Interests

February 18, 2013 by The McKellar Law Firm, PLLC

In the case titled Johnson v. Johnson, No. M2012-00900-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee divorce attorneys are shown an example of when a parental relocation request should be denied by a trial court.

Facts: The parties were married for 16 years and had three children before an agreed divorce was finalized in January 2010. Mother was named primary residential parent ("PRP") and Father had 122 days of coparenting. In April 2011, Mother sent Father written notice of her proposed relocation to California, due to her desire to go to school to study marine biology. Father filed a Petition in Opposition to Relocation and to Modify the Parenting Plan, asking to be named PRP. At the trial, the court learned the older child was in his final semester of high school and that he wanted live with his Father during college. Mother agreed he should be allowed to stay. Father called an expert who testified that he believed the daughter would suffer substantial emotional harm should she be forced to relocate. The expert also stated that the impact of dealing with her Mother moving to California would be considerably less than if the daughter was also forced to relocate. The trial court held that the daughter would not be allowed to relocate to California, noting the following: Mother's remarriage does support a reasonable purpose for relocation; that Mother's plan of returning to school was not supported by the record; that there was no vindictive purpose by Mother; that the expert opined the daughter would suffer serious harm; and that should Mother still want to relocate with either child, the parties should return to mediation to draft a new parenting plan.

Mother appealed, arguing that the trial court incorrectly held that the threat of harm of relocation outweighed the threat of harm of changing the PRP.

Analysis: The Court must look to T.C.A. §36-6-108(a) & (d), which states that unless the court finds one of the following, the parent shall be allowed to relocate with the child: that the relocation does not have a reasonable purpose; the relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody; or if the motive is vindictive. If any of these are found, the Court will move on to a best interests review under T.C.A. §36-6-108(e).

Here, the trial court found that Mother's remarriage was a reasonable purpose for relocation but also determined that the relocation posed a specific threat of harm that outweighed the harm of changing the PRP, mandating a best interests review. The trial court then determined that the daughter's best interests weighed in favor of not allowing the relocation. Mother argues that the expert testimony did not support a finding of harm. However, said expert stated that the daughter found it difficult to discuss the possibility of moving and would withdraw and shut down. Father testified the child "broke down" upon learning of Mother's intention, and continued to do so for several days afterward. The Appeals Court found that the expert testimony did support a finding of harm that outweighed the harm of changing PRP, and that the trial court also correctly determined that the daughter's best interests weighed in favor of not allowing her to relocate with the Mother.


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

January 4, 2013 by The McKellar Law Firm, PLLC

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.


Modification of Residential Parenting Plan: Material Change in Circumstances and Best Interests of the Child

November 13, 2012 by The McKellar Law Firm, PLLC

In Fillers Crum v. Fillers, No. E2011-01885-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2012), Tennessee divorce attorneys learn how Tennessee courts determine whether a modification of a residential parenting plan is warranted by determining whether a material change in circumstances has occurred and by assessing the best interests of the child.

The facts are as follows: The parties married and had three children. The parties agreed that Father would pay child support and have visitation on regularly scheduled holidays, every Tuesday and Thursday for five hours, and every other weekend. Under the plan, each party was entitled to 182.5 days with the children, with Mother designated primary. Five years later, issues pertaining to the plan arose. Father failed to reasonably communicate, inform Mother of changes in his employment, pay child support, or visit with the children on holidays; also, he claimed the children on his income tax returns, behaved inappropriately and used inappropriate language in the children's presence, and had improper relations with a woman who was married (who also insulted Mother in front of the children). On account of the aforementioned reasons, Mother filed to modify the parenting plan to decrease Father's visitation, obtain a greater amount of child support, and hold Father in contempt.

After mediation failed, the parties had a hearing. Mother mentioned the above grounds and also alleged that one of the children was injured while with Father and that Father failed to maintain electricity at his home and neglected to maintain the children's life insurance coverage. In 2005, a pending domestic abuse case had resulted in the children's three-month placement in State Custody; however, Mother stated that there had been no other issues since that one incident. Mother complained about Father's failure to follow the designated visitation schedule and failure to relinquish the children in a timely manner several times; however, Mother conceded that "the procedure for exchanging the children had improved since the filing of her petition for modification." She also provided Father with more visitation time throughout the week than Father was granted under the Plan. Mother resided with her second husband in a five-bedroom home; her husband was financially stable and had no criminal background. Both Mother and her new husband were on prescription medication. The trial court held that there had been a material change in circumstances. It provided Father with only 80 days of co-parenting time and Mother with 285 days. The court also raised Father's child support. The court held father in contempt for violating the parenting plan by claiming the children on his tax return and by failing to maintain life insurance.

The Tennessee Court of Appeals considered only one issue: "whether the trial court erred in modifying the parenting plan by awarding Father with less than equal co-parenting time." Citing to case law from our jurisdiction, the appellate court explained: "When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstances has occurred and (2) that a change of custody or in the residential schedule is in the child's best interest." The following factors indicate that a material change in circumstances has occurred: (1) a change happened after the order was entered; (2) at the time of the order's entry, this change was not "reasonably anticipated"; (3) the change "affects the child's well-being in a meaningful way."

The court alleges that in this case, Mother only wished to modify the residential parenting schedule--not custody. As such, Mother "must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. [It] 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 interests." Tenn. Code Ann. § 36-6-101(a)(2)(c).

The appellate court affirmed the existence of a material change in circumstances since Father made insulting statements regarding Mother and did not follow the plan. For assessing the best interests of the child, the court listed Tenn. Code Ann. § 36-6-404(b) factors including: "the relative strength, nature, and stability of the child's relationship with each parent...; willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent...; the disposition of each to provide food, clothing, medical care, education...; the degree to which a parent has been the primary caregiver...; the importance of continuity and the length of time the child has lived in a stable, satisfactory environment; evidence of physical or emotional abuse, the character and behavior of any other person who resides in or frequents the home of a parent and their interactions with the child; the reasonable preference of the child if 12 or older...; each parent's employment schedule..." Since Mother provided Father with greater visitation time than the parenting plan mandated, and since Father did not provide a proposed parenting plan, the Appellate Court upheld the trial court's adoption of Mother's proposed plan.


Selection of Primary Residential Parent, Transfer of Petitions, and Definition of "Material Change in Circumstances" in the Context of Custody Disputes

October 2, 2012 by The McKellar Law Firm, PLLC

In In re: Jada C.H., No. W2011-02542-COA-R3-JV (Tenn. Ct. App. Sept. 18, 2012), Tennessee divorce attorneys learn the manner in which courts select the primary residential parent, decide whether a petition should be transferred to a different county, and define a "material change in circumstances."

The facts of the case are as follows: Mother (who had three other children in addition to the child involved in this case) and Father had a child out of wedlock in 2008. Father filed a Petition for Custody of the minor child in 2009. The Special Judge dismissed the petition because the court had not confirmed his paternity. The Juvenile Court Judge later agreed to Father's request for a hearing. Father affixed a paternity test to his motion to alter or amend the prior dismissal and established that he had attempted to petition the Court "to enter an agreed order of paternity" on an earlier date. Father later filed a petition to preclude Mother's potential relocation to another state. Father also filed a Contempt petition for interference with his parenting time. In a judicial order, Mother and Father were given joint custody, but the court designated Father as primary residential parent. The case was continued, but a new order granted Father temporary parenting time and designated Mother as primary residential parent. The final custody hearing involved allegations of dependency and neglect, and the expert testified that efforts of reconciliation "w[ere] fruitless." The judge stated that Mother refused to call the child when the child was with Father, that three different men fathered her four children (some of whom have been in prison and none of whom want to be a father to their children), and that Mother had a criminal history. The judge did not believe Mother's testimony regarding sending her older children to school and noted that she was "secretive" and "hostile", that she was seriously dating another man, and that she had difficulties controlling the behavior of her oldest daughter. Further, Mother was opposed to cultivating a relationship between the child and her Father. The court gave both parties joint custody but awarded Father primary residential parent but failed to find any dependency and neglect on Mother's part.

Later, Mother alleged inappropriate sexual contact on the part of Father and his new wife and therefore filed a Petition for Dependency and Neglect. In accordance with Tenn. Code Ann. § 37-1-112, the Special Judge entered an order transferring the petition to Lake County, sua sponte and on Father's verbal motion. Father alleged that these "unfounded allegations of sexual abuse were detrimental to the child" in his Petition for Modification, Supervised Visitation, and Contempt. The Special Judge granted Father's petitions, resulting in supervised visitation for Mother.

The appellate court decided the following issues: "(1) whether the trial court erred in naming Father primary residential parent; (2) Mother's dependency and neglect petition should be transferred to Lake County; and (3) whether there was a material change in circumstances to justify modifying Mother's parenting time to supervised."

First, the appellate court asserted that Tenn. Code Ann. § 36-6-106 provides factors that guide courts in selecting the primary residential parent and in assessing the best interests of the child, including: "stability of the family unit", "character and behavior of any other person who resides in or frequents the home of a parent" and "each parents' 'willingness and ability... to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents." After reviewing the evidence from the hearing and in light of the above factors, the appellate court affirmed the trial court's designation of Father as the primary residential parent. Second, the appellate court reversed the trial court regarding the transfer of Mother's neglect and dependency petition to Lake County Juvenile Court since Tenn. Code Ann.§ 37-1-112 provides that the juvenile court must make a finding of fact prior to transferring the case to the county where the child resides. Since in this case the trial court made no findings of fact, the appellate court must "vacate... and remand."

Third, the court definitively found that the order awarding Mother unsupervised visitation "was final for purposes of modification." Modification of a final order requires "a material change in circumstances," and it occurs when: "(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way." In this case, the court found no material change in circumstances or "facts not in existence or reasonably foreseeable when the decision was made." Finally, the appellate court recommended that Father's Petition to Modify Mother's parenting time and Mother's Petition for Dependency and Neglect should be combined and potentially transferred to Lake County Juvenile Court (assuming the court provides adequate findings of fact).


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.