When a custody arrangement is in place and one of the parents wishes to make modifications, he or she will need to prove that there has been a material change in Child Custody Material Change Circamstancescircumstances. In Tennessee, if a material change of circumstances is indeed found, then the Court applies a best interest of the child analysis per Tennessee Code Annotated 36-6-101.

In John Wayne McDonald v. Jamie Rhea McDonald Bunnell, the issue before the court was whether the use of foul language and racial slurs around the Mother and Father’s two children by their Stepfather constituted a material change of circumstances warranting a modification of the parenting plan by changing the primary residential parent from the Mother to the Father.

The facts of the case are John Wayne McDonald and Jamie Rhea McDonald Bunnell’s marriage produced two children before the parties divorced in 2012. The permanent parenting plan drawn up made the Mother the primary residential parent. When the Mother subsequently remarried and relocated to Cookeville, TN with the children and their Stepfather, the Father filed a petition to modify the existing parenting plan and asked the Court to designate him the children’s primary residential parent. The Mother properly filed a petition to relocate and modify the parenting plan but the Father was concerned by the behavior of the children’s Stepfather, arguing his foul language constituted a material change in circumstance.  The Father asserted a modification would be in the children’s best interest. The Father presented evidence to the trial court showing that that Stepfather used foul language around the children and had referred to them using a racial slur, both of which the Mother and Stepfather conceded. However, the trial court ruled that Stepfather’s behavior, though “distasteful and ill-advised” did not rise to the level of a material change of circumstance. The Father appealed raising only one issue: Whether the trial court erred in finding that Father failed to establish a material change in circumstance.

The Court of Appeals of Tennessee At Nashville found the Stepfather’s use of offensive language to be “misguided and unadvisable,” but  the trial court’s injunction prohibiting foul language around the children, along with the lower court’s order that Mother and Stepfather seek family counseling was sufficient to ensure the children’s continued well-being. Thus, the Court ruled that the father did not prove by a preponderance of the evidence that the Stepfather’s behavior constituted a material change of circumstance and therefore the Mother remained the children’s primary residential parent.

If your former spouse if attempting to modify the permanent parenting plan claiming a material change in circumstances has occurred, contact attorney family law Attorney Donna Wagner to schedule a free consultation.