Recently in Post-Divorce Modification - Parenting Plans Category


Post-Divorce Parental Relocation in Tennessee

Many people believe that once they divorce a spouse that their dealings with them are over. However, when children are involved this is rarely the case. Post-divorce custody issues come up all too often, and there are many complex legal issues involved. One of these types of issues is the relocation of a parent.

Tenn. Code Ann. § 36-6-108 deals with parental relocation and sets forth the statutory requirements for same. If a parent is moving more than 50 miles from another co-parent the statute requires the moving co-parent to send written notice via certified mail to the other parent within 60 days of the intended move date. The notice must include the following:

• Statement of the intent to move;
• Location of the proposed new residence;
• Reason for the relocation; and
• Statement advising the other parent that he or she may file a petition in opposition to the move within 30 days of the receipt of the notice.

Tenn. Code Ann. § 36-6-108(a)(1)-(4).

Most parenting plans require parents to resolve any issues with modifications of the plan via mediation or arbitration. However, in circumstances where an order of protection is involved parties may ask the Court for a waiver of this step and go directly to a hearing.

If mediation or arbitration is unsuccessful, the relocating party must file a petition with the court requesting a modification of the parenting plan as per Tenn. Code Ann. § 36-6-108(b) which states in pertinent part, "[u]nless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation." Factors that the court considers in deciding these matters differ depending on whether the parents enjoy equal co-parenting time or not. For instance, Tenn. Code Ann. § 36-6-108(c)(1)-(11) sets forth the factors a court considers when both parents enjoy "substantially equal intervals of time with the child." Tenn. Code Ann. § 36-6-108(c). Some, but not all, of these factors are as follows:

• How visitation has been exercised in the past
• Whether the primary residential parent is likely to comply with a new visitation arrangement
• The relationship of the child with the parents
• Continuity in the child's life
• Mental and physical health of the parents
• Character and behavior of others living in the parents' homes

Tenn. Code Ann. § 36-6-108(c)(1)-(11).

However, if the co-parenting time is not equal preference is given to the parent with whom the child spends the most amount of time. Tenn. Code Ann. § 36-6-108(d)(1) states that if the parent seeking the relocation is the parent that spends the most amount of time with the child the relocating parent will be allowed to relocate unless the court finds the following:

• The relocation does not have a reasonable purpose
• The relocation poses a threat of specific and serious harm to the child
• The parent's motive for relocating is vindictive in nature

Tenn. Code Ann. § 36-6-108(d)(1)(A)-(C). This means that the burden is on the parent that has less time with the child to prove that any of the above circumstances exists. The statue goes on to define specific and serious harm as:

(A) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is available;

(B) If a parent wishes to take a child with specific educational requirements to an area with no acceptable educational facilities;

(C) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently using alcohol or drugs;

(D) If the child relies on the parent not relocating who provides emotional support, nurturing, and development such that removal would result in severe emotional detriment to the child;

(E) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state, and such support system is not available at the proposed relocation site; or

(F) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, that does not have an adequately functioning legal system or that otherwise presents a substantial risk of specific and serious harm to the child.

Tenn. Code Ann. § 36-6-108(2)(A)-(F).

In addition to the statutory requirements, courts also rely on prior opinions and its own observations to make their decisions. It is highly advisable that any relocating, divorced parents in Tennessee speak with an attorney prior to finalizing any plans to move to make sure proper procedure is followed and that the statutory requirements are met.


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.


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.


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.


Two Lessons from Recent Case Law: Appeals of Criminal Contempt Acquittals Are Barred in Tennessee; Take Care to Make Orders Specific

March 15, 2013 by The McKellar Law Firm, PLLC

In the case of Adkisson v. Adkisson, No. E2012-00174-COA-R3-CV (Tenn. Ct. App. March 11, 2013), Tennessee divorce attorneys learn the following about criminal contempt: 1) that for a party to be found in criminal contempt, they must violate a court order that is neither vague nor unambiguous; and 2) that an acquittal of criminal contempt cannot be appealed.

The parties divorced in 2006 and in 2009 Mother filed to modify the parenting plan and for a finding of contempt against Father for failing to follow the plan's provisions for medical costs and spring break visitation. Father counter-filed, requesting that he be named primary residential parent ("PRP") and for contempt against Mother for also failing to follow the plan's medical provisions and violating the parental bill of rights. The trial court found: a material change of circumstances existed but the child's best interests required the Mother to remain PRP; that Father was in contempt for not reimbursing Mother for medical expenses and not following the spring break schedule; that Mother was in contempt for failing to reimburse Father for medical expenses, for failing to return his property and for violating the parental bill of rights; and Mother was awarded attorneys fees and costs in the amount of $17,500. Father appealed.

Modification of Parenting Plan: The Father here appealed the court's best interest finding that a change of custody was not proper under the factors in T.C.A. §36-6-106. Here, the thirteen year old son testified that his Mother interfered with his telephone calls to his Father and that his preference was to spend equal time with both parents. He also stated his Mother told him to say "bad stuff" about Father to his therapist. The therapist testified that both children stated their unhappiness with Father's treatment of them. The therapist gave an opinion that the Father was emotionally abusing the children by taping conversations, grilling them about therapy and making them "a rope in a tug of war." Her opinion was that the children's testimony of wanting more time with Father was due to his coercion of them. The therapist stated she had "never seen such bad conduct on the part of a parent." The trial court found that Father had narcissistic and controlling behavior traits such that he addressed most issues relating to the children without regard for the children's welfare..." Based on the record, the Appellate Court here could not find that the trial court abused its discretion in maintaining Mother as the PRP.

Father's Contempt over Spring Break: The parties' parenting plan provided the following: "The parties shall alternate Spring Vacation with Mother having the children in odd years and the father having the children in even years." The term 'Spring Break' is not defined in the Plan. In 2010, Father took the children on the day school let out (Thursday or Friday) and returned them to Mother nine days later. The trial court found that the Father lied to Mother, stating that the weekend before school resumed would be made up by Mother if she allowed him the extra days of Spring Break and then refused to do so, thereby depriving Mother of those days. The Appellate Court here found that the trial court's conclusions were not supported by the evidence. First, the testimony showed that Mother did not agree to a make-up weekend, but that she would instead get nine days during next year's Spring Break, which she did. Secondly, "Spring Break" is not well defined enough by the plan to uphold a finding of criminal contempt. Criminal contempt requires a court order that is not vague or ambiguous, and when they are, the person facing contempt is given the benefit of the doubt. Therefore, the finding of Father's contempt was reversed.

Mother's Contempt Over Medical Expense Reimbursement and Parental Bill of Rights: In this case, the trial court refused to find Mother in criminal contempt based upon either allegation. Due to the double jeopardy provisions found in the Tennessee State Constitution, "an appeal from an acquittal of criminal contempt is barred." Therefore, Father's appeal of the trial court's findings were dismissed by the Appellate Court.


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.


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.


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.


Recent Case Disallowed Parent from Relocating Children to Maryland

April 25, 2012 by The McKellar Law Firm, PLLC

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.


Violation of Parenting Plan May Lead to Change of Custody in Tennessee

April 10, 2012 by The McKellar Law Firm, PLLC

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.


Material Change Required for Change of Custody in Tennessee

February 7, 2012 by The McKellar Law Firm, PLLC

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.


Courts Must Make Comprehensive Review in Best Interest Determinations

January 11, 2012 by The McKellar Law Firm, PLLC

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.


Tennessee Trial Courts Have Wide Discretion in Setting Parenting Schedules

November 22, 2011 by The McKellar Law Firm, PLLC

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.


Two Standards in Tennessee for Modifying Parenting Schedules

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.


Parental Relocation Post-Divorce in Tennessee is Possible, But Not Automatic

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).
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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.