Tennessee Divorce Attorney Blog

The Tennessee Court of Appeals has recently laid out in Brown v. Brown, No. E2011-00421-COA-R3-CV (Tn. Ct. App. April 13, 2012) what it means when there has been a "material change of circumstances" to justify not only a change in custody, but also whether it is in a child's best interest to relocate with a primary residential parent. This case shows Tennessee divorce attorneys when a relocating parent may not be able to move with the minor children.

The husband and wife were married for sixteen years with three children before the husband filed for divorce. The parties entered into a Marriage Dissolution Agreement ("MDA") and a parenting plan, making the wife the primary residential parent. Three months after the divorce, the wife requested that the court modify their parenting plan so that the children could move with her to Maryland where her fiancé lived. The court denied the wife's request to take the children with her to Maryland, finding that it was in the best interest of the children to stay with the father in Tennessee. Because the move was considered a material change in circumstances, the court also modified the original parenting plan by making the father the primary residential parent. The wife then appealed to the Tennessee Court of Appeals in Knoxville.

In order for a court to modify a parenting plan, a court must go through a two-step process under T.C.A. § 36-6-101(a)(2)(B)-(C). First, the parent wanting to modify the plan must prove a material change in circumstances has occurred. To determine whether there is a change in circumstance, the court then determines 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. It is important to note that a court uses a lower standard when determining whether there has been a "material change of circumstances" to modify custody than if it is determining the primary residential parent. In this case relocation to Maryland was enough to be considered a material change in circumstances.

If the court concludes that there has been a material change in circumstances, the court then determines whether the change in custody or visitation is in the child's best interest by using a list of factors found in T.C.A. § 36-6-106(a). When a primary residential parent wishes to relocate with their children, a court looks to T.C.A. 36-6-108(c) to determine whether the relocation is in the child's best interest. Because the children had already lived their entire lives in Tennessee, had a stable support system of relatives in Tennessee, no ties in Maryland, and even expressed a desire to stay in Tennessee, the appellate court found that the trial court did not err in holding that staying in Tennessee was in the children's best interest and therefore changed the primary parent to Father, the party remaining in Tennessee.

The case of Reed v. Reed, No. M2011-00980-COA-R3-CV (Tenn. March 30, 2012) shows Tennessee divorce and custody attorneys how to use one parent's failure to adhere to a parenting plan or court order to win a modification petition.

Mother and Father divorced in 2010, with Mother named as primary residential parent "PRP." However, Mother was enjoined from allowing her paramour to have contact with the children, and both parties could not allow unrelated, overnights guests in the home when the children were present. Later in 2010, Father filed a contempt action and requested that the parenting plan be changed, based upon Mother having allowed the paramour to live with her and the children. Father then filed an emergency motion for custody, granted by the court based upon Mother's dishonesty and failure to abide by the order pertaining to the paramour. A hearing was held and the court found a material change of circumstances existed and it was in the best interest of the children for Father to be named PRP based upon: flagrant violation of the order by Mother, and her "spending a lot of energy hiding [the paramour]."

Here, Father's burden was to show a substantial and material change of circumstances to get the PRP changed. T.C.A. §36-6-101(a)(2)(B) declares the following:
"A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child."

Here, the evidence established that Mother clearly violated the order, based on the court's finding that Mother's denial of the same was not credible. A private investigator testified that she witnessed the paramour at Mother's residence, saw his car parked outside late at night and early in the morning and saw him with one of the children in his car outside of Mother's presence. The investigator also submitted photographic evidence of this as well as a certified copy of the paramour's license plate matching the photographs. The paramour also apparently listed Mother's address as his home address on his driver's license.

The Appellate Court noted that Father did not have to prove that this change was a substantial risk of harm to the children under T.C.A. §36-6-101(a)(2)(B) to meet the material change standard, and affirmed the trial court's decision.
Next, the Appellate Court reviewed the best interests determination that follows all material change findings. Mother argued that the court failed to make the required finding. The Appellate Court found that the trial court "made little more than a generic best interest conclusory finding; it did not articulate any findings regarding the statutory factors other than to generally address Mother's violations..." The Appellate Court, under the best interests factors, found the following: Mother failed to take the children to scheduled dental visits; Mother made the children late for school on two occasions; Father had been the primary caregiver since named PRP; and Mother's refusal to allow the trial court to meet or question in person the paramour (noting that T.C.A. §36-6-106(a)(9) allows the court to consider the character and behavior of any other person who resides in or frequents the home of the parent). Therefore, the Appellate Court found that the children's best interest affirm the trial court's designation of the Father as PRP.

The case of Gray v. Jeans, No. E2011-00692-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2012) shows Tennessee divorce and custody attorneys that when filing to modify a Permanent Parenting Plan if no material change in circumstances has been proven, the court is not required to make a best interests determination and must deny the change of custody.
In 2005, the parties (never been married), entered into a Permanent Parenting Plan ("PPP") allowing shared custody. The Father was designated primary residential parent coparenting rotating every two weeks and no child support.

In 2010, Mother filed a Petition for Contempt and to Modify Permanent Parenting Plan allowing her to be the primary residential parent and to relocate to Rutherford County. Mother alleged Father failed to provide appropriate medical care and was abusive to her and the children. Mother also alleged Father exhibited inappropriate behavior towards her in the presence of the children. The trial court denied Mother's requests. Mother appealed.

The Trial was held in February 2011. On cross-examination, Mother acknowledged that, in the two year period in which she lived with Father, she did not call the police over Father's alleged instances of abuse. Mother also acknowledged that in 2010 - 2011 both Children did well in school. Mother also acknowledged spending time with Father in 2010, including shopping and meals. Mother stated her current Fiancé was the fourth man she had planned to marry, but stated he was the only one she was "serious" about.
Father denied any abuse towards Children and acknowledged he hit Mother once after she had hit him in the nose. Father stated the Children did very well in Hamblen County schools and that any relocation would be detrimental. Father confirmed he used corporal punishment but denied any threats toward Mother.

The Trial Court found the evidence did not show a material change of circumstances justifying a change of the PPP. The Appellate Court held, "Existing custody arrangements are favored because children thrive in stable environments." Hoalcraft v. Smithson, 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). A custody decision, once made and implemented, is considered res judicata upon the facts in existence or those which were reasonably foreseeable when the decision was made. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001). However, our Supreme Court has held a trial court may modify an award of child custody 'when both a material change of circumstances has occurred and a change of custody is in the child's best interests." Kendrick v. Shoemake, 90 S.W.3d 566, 568 (Tenn. 2002). Further the Trial Court's implicit finding was a clear rejection of Mother's abuse contentions. The Appellate Court quoted, "It necessarily follows that if no material change in circumstances has been proven, the trial court 'is not required to make a best interests determination and must deny the request for a change of custody." Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999). Appellate Court affirms the Trial Court's finding and decision that no material change in circumstances has occurred.

Tennessee divorce and custody attorneys should take note of the recent Appellate case entitled Shultz v. Shultz, No. E2011-00874-COA-R3-CV, which emphasized the best interest review when modifying a custody order or parenting plan.

The parties married in 2000, had a child in 2003 and filed for divorce in July 2008. Mother filed in Knox County, requesting a temporary parenting plan (TPP) via Local Rule 28 with an affidavit alleging Father was unstable and had anger issues. The trial court entered the TPP, giving Father visitation every other weekend. The parties settled and filed a permanent parenting plan (PPP) which the Court approved, giving Father 120 coparenting days every year.

In 2009, Mother filed a petition to modify alleging a material change of circumstance. Father responded by requesting equal co-parenting time. The trial court ordered that the Father could not have overnight visitation with the child unless and until he stopped cohabitating with his paramour (whom he later married). In 2010 Mother made a filing alleging Father lived with seven other people, that a minor living there was facing criminal charges for alcohol use, that a domestic abuse police call occurred at the residence, and that the school had informed Mother that the child had written a "disturbing message with sexual content." DCS investigated this incident and found the child had been exposed to inappropriate amounts of information regarding sex. The trial court then entered a new TPP giving Father day-only visitation every other weekend.
After a hearing, the trial court found that Mother constantly instigated investigations (police, fire marshal, DCS) against Father which were all unfounded and that Father was hardworking and trustworthy. Therefore, the court ordered fifty-fifty coparenting and joint decision making.

Mother then switched counsel (resulting in the trial judge changing due to a conflict) and filed a TRCP Rule 59 Motion asking that the order be set aside and/or for a new trial. The new judge denied this and affirmed the trial court. The Mother appealed.

Modification of a parenting plan is a two-step process under T.C.A. §§36-6-101(a)(2)(B) and (C). First, the petitioner must show a material change of circumstance has occurred, a standard that is higher for a change of custody than a change of residential parenting schedule. If such a change is proven, the court must turn to a best interests determination which includes a variety of factors found in T.C.A. §36-6-101(a)(1)-(10). These factors include emotional ties between child and parent, ability of parents to provide, continuity, stability of family unit, parents' mental and physical health, the home/school/community record of child, reasonable preference of a child twelve years or older, evidence of physical or emotional abuse, character and behavior of third parties who interact with the child, and each parent's past and potential parenting.

Here, the Appeals Court concluded the trial court did not make a comprehensive best interest review in light of the following: lack of consideration of Mother's history as primary caregiver; lack of evidence showing Mother was unwilling or unable to provide; lack of evidence showing Father's ability since his remarriage had improved; Mother's proven stability; and the character and behavior of third parties living in Father's home. Accordingly, the Appellate Court found the Father failed to meet his best interests burden. Therefore, the case was reversed and remanded to the trial court for a new hearing on the best interests standard and revision of the schedule.

In Eldridge v. Hunley, No. W2011-00728-COA-R3-JV, the Tennessee Court of Appeals set out the standard used when determining whether a material change of circumstances is enough that modifying a parenting plan would be in the child's best interest, and shows Tennessee divorce and Tennessee child custody attorneys that trial courts have wide discretion when setting coparenting schedules.

The parties had a child in 2006. Shortly after the child was born, the father petitioned to establish paternity and have coparenting rights. While the father requested joint decision making and shared parenting time on an alternate week basis, the juvenile court designated the mother as the primary residential parent ("PRP") and allowed the father to have parenting time every first, third, and fifth weekend of each month. In 2008 the father petitioned the juvenile court to modify the plan, and in 2009 the court changed the plan so the father could have the child every first and third week of each month. The mother then requested a hearing in 2010 to modify the parenting plan a third time. After the hearing, a juvenile court special judge changed the parenting plan so the father would only have coparenting every other weekend. The father then filed an appeal to the Tennessee Court of Appeals.

According to T.C.A. § 36-6-101(a)(2)(A), a trial court has wide discretion to establish a parenting arrangement when done in the best interest of the child. But a parenting order may be modified if there is a material change of circumstance as defined in T.C.A. § 36-6-101(a)(2)(C). In order to determine whether a parenting plan modification is warranted when there is such a material change of circumstance, a court must first determine whether a material change of circumstance has occurred that affects the child's well being. If it does affect the child's well-being, then the court must determine whether a change is in the best interest of the child.

The appellate court noted that trial court did not make any specific findings of fact to support its determination as required by Tenn. R. Civ. Pro. 52.01. While in some cases this would have been a reversible error, the appellate court did not believe so in this case because the record independently supported the trial court's judgment. While a psychologist testified that the child was thriving under the alternate week visitation schedule, the testimony also showed that the equal parenting time was not successful when the parents could not cooperate with each other. The trial court noted that the parties' relationship was highly contentious in that they were not able to get along with each other or work together. The record also failed to contain any evidence that the child experienced any increased anxiety after the latest modification to the parenting plan. Based on this as well as other evidence in the record, the appellate court affirmed the trial court's decision, noting that the trial court did not abuse its discretion or make a decision that was not in the child's best interest.

The recent Tennessee Appeals Court case entitled Schreur v. Garner, 2011 WL 2464180 (Tenn.Ct.App., June 20, 2011) showcases the two different standards that may apply in modification of parenting plan cases.

The Husband was named primary parent ("PRP") under a 2007 Williamson County, Tennessee divorce. In 2008, Mother filed a petition to modify the parenting schedule and asked to be named the PRP. Under the original plan, Mother was given co-parenting time from Friday until Tuesday morning every other week and Tuesday nights in the off-week. Further, Mother was required to attend counseling for twelve months and at that time, the parenting plan would be reviewed in mediation.
The parties entered mediation in 2009 but did not come to a resolution, so Mother filed a petition with the court, alleging that the current schedule caused the son to struggle in school and that the alternating residences caused the children confusion. Father alleged Mother did not complete her counseling.

The trial court held a hearing and found that no material change of circumstances existed, but determined that the children's best interest would be served by changing the schedule to alternating weeks with each parent due to the disruptive nature of the previous plan.

The Appellate Court reviewed de novo. The Court described the two separate standards that arise when dealing with parenting plan modifications under T.C.A. §36-6-101(a)(2)(C): when a party wishes change custody, a material change of circumstances must be shown; however, when a party wishes to change the residential schedule but not the PRP, the standard for showing that material change is lower, and includes demonstrating the current schedule simply is not workable. Therefore, the Appellate Court disagreed with the trial court's decision that it was not necessary for Mother to show a material change. However, the Court found the Mother met this burden of proving such a material change which is precipitated upon best interests of the children. Therefore, the trial court, in deciding a change was in the children's best interests, also impliedly decided a material change existed.

The evidence supporting this conclusion included the children becoming confused as to where they were going each night, resulting in transportation issues at school and downward academic performance which could be addressed with more stability during the school week.

Therefore, the evidence supported the trial court's decision that alternating weeks would be in the children's best interests and less unsettling, and provided the statutory ground of material change of circumstances necessary to modify the residential schedule.

How should a court evaluate a custody arrangement when one parent seeks to move the children away from the other parent after the finalization of their divorce in Tennessee? The Tennessee Court of Appeals was faced with such a situation, and on June 8th delivered its opinion in In re Iyana R.W. No. E2010-00114-COA-R3-JV (Tenn. Ct. App. 2011).

In this case, the mother was the primary residential parent ("PRP") of a ten-year-old daughter. The mother also spent significantly more time with the daughter than the father did as he visited every other weekend. The mother eventually remarried a man in the military who was stationed in Colorado. She wished to relocate there with her daughter and sent a letter to the child's father notifying him of her plan to move. She also filed a Plan to Modify Visitation with the court. The father then filed a Petition to Change Custody because he opposed the move.

The trial court ultimately granted the father's Petition and he became the child's PRP. The Court of Appeals reversed the trial court, holding that the trial court did not apply the correct standard for determining whether the mother should be allowed to relocate with her daughter. The Court relied on Tennessee Code Annotated § 36-6-108(d), which applies when a parent who is spending more time with the child than the other parent wishes to relocate. The statute states that the parent spending more time with the child shall be permitted to relocate with the child unless the court finds one of three exceptions apply: first, the relocation does not have a reasonable purpose; second, the relocation would pose a specific threat of harm to the child; third, the motive for relocating is vindictive, meaning that the reason one parent wants to move is to interfere with the visitation rights of the other parent.

The parent opposing relocation can petition the court to prevent the child's relocation. However, it will be up to that parent to prove that one of the three exceptions applies. If one of those exceptions applies, only then is the court to consider whether relocating is in the best interests of the child.

In Iyana R.W., the trial court erred in not applying the statutory requirements. Instead, the trial court simply considered whether the move would constitute "a substantial and material change in circumstances." The Court of Appeals determined that because the purpose of the move was reasonable - so the mother could live with her new husband - and because there was no evidence that the other exceptions applied, the mother and child should be allowed to move.

In such a case, it is important for all the parties involved to know the legal standards under which a court will evaluate relocation of a minor child and what each parent will be responsible to prove.

In order to have a parenting plan modified in Tennessee, a party must meet a heavy burden. This is the case regardless of whether a Tennessee divorce court ordered a parenting plan or if unmarried parents went through Juvenile Court.

First, a petitioner must show a material change of circumstances. This change must arise after the entry of the initial parenting plan, and must not have been anticipated by the parties at that time. Such a change is deemed "material" when it affects the child's well-being. If shown, the next step is to determine whether a modification of the co-parenting schedule or change in the primary residential parent ("PRP") is in the best interest of the child. This analysis consists of several factors, including those found in T.C.A. §36-6-106(a) (emotional ties, ability to care for the child financially, stability, mental and physical health, school record, child's preference, abuse, nature and character of third parties who interact with the child and future performance of parenting abilities) and T.C.A. §36-6-404(b) (strength of relationship, level of parenting responsibility, willingness to facilitate the other parent's relationship, ability to provide, emotional/developmental needs of the child, physical and emotional/mental health of each parent, continuity, and employment schedule).

A Tennessee Court of Appeals case entitled Pentecost v. Pentecost, 2009 WL 4341647 (Tenn.Ct.App. Dec.1, 2009) illustrates how difficult this burden can be. In that case, the Mother was originally named PRP. Father filed a petition objecting to Mother's relocation and asked for PRP designation. The parties entered an agreed order naming Father PRP during the school year and Mother PRP in the summer. Then Mother filed a petition to modify and to be PRP based upon several factors, including her return to Tennessee, the children having resided mostly with their paternal grandmother and not Father, Father's alcohol use, his failure to maintain a stable living environment and his recent arrests for domestic assault and DUI.

The trial court found a material change of circumstances existed due to Father's criminal incidents, Mother's failure to promote Father's relationship with the children, and Mother's poor judgment in not giving Father his co-parenting time required by the court order. However, the court determined that Father should remain PRP because the material change could have been anticipated (in light of the fact that Father abused alcohol prior to the Agreed Order having been entered). Additionally, the court found the Mother had agreed to Father being PRP and that the children were doing well in school. Therefore, the change had no material effect on the children.

In Clement v. Clement, 2010 WL 3852283 (Tenn.Ct.App. Sept. 28, 2010), the parenting plan named Mother PRP and gave each party equal co-parenting time. Mother moved cities (less than 100 miles away), and both parties filed competing petitions to modify. After finding that the Father had drug and alcohol addictions, that the existing parenting plan was unworkable due to the long distance commute between the parties, and that Mother had legitimate reasons for moving, Mother remained PRP and the plan was modified to give Father standard visitation (80-120 days per year) instead of the original fifty-fifty time (182.5 days).