Trial Court Ruling Reversed By Appellate Court Finding Material Change Of Circumstance

As covered in a previous blog entry, in order to modify a parenting plan in Tennessee the court applies a two-part analysis per Tennessee Code Annotated 36-6-101. The court must Child Custodyfind that a material change of circumstances has occurred. If so, then the court determines whether a change of custody is in the child’s best interests.

The facts of In Re Jacob R. are as follows: David B. (Father) and Angela W. (Mother) are the unmarried parents of Jacob B. (Child). Father’s paternity was established by court order when Child was four years old. At that time, a permanent parenting plan was entered designating Mother as Child’s primary residential parent.

Ten years later, Father petitioned to modify the parenting plan to change custody and increase his parenting time. He alleged the following material changes of circumstance justifying a change in custody:

  1.  Child’s deteriorating relationship with Mother;
  2.  Mother’s adoption of two other children;
  3.  Child’s preference to live with Father;
  4.  Mother’s lack of parenting skills.

Father also asserted that Child had a strong interest in playing baseball and that, with Father, Child would be able to attend a private school that would be better for him both academically and athletically.

Mother responded by filing a motion to dismiss the petition. Mother’s motion asserted that Father had failed to allege a material change of circumstance sufficient to allow for a change in custody. Father subsequently filed an amended petition to modify custody alleging that Mother subjected Child to “physical, emotional and verbal abuse.”  Father also alleged that Jacob felt like he was treated differently than his adopted siblings.

Following an initial hearing at which the trial court spoke with Child in camera, the court entered an order keeping the permanent parenting plan in place but granting Father visitation with Jacob in the summer until the next hearing.

A trial was held on July 17, 2013, and in its oral ruling the trial court found that Father had failed to prove a material change of circumstance as necessary for either a change in primary residential parent or parenting time. The court found that Father’s testimony was not credible in relation to the alleged material change of circumstance. Instead, the court credited Mother’s testimony in finding that her altercations with Jacob were caused, at least in part, by the disruption in their relationship brought about by the modification proceedings. The court also found that Father’s testimony was not credible and, therefore, denied Father’s petition to modify.

Father appealed to The Court of Appeals of Tennessee At Nashville arguing that the trial court erred in failing to find a material change of circumstance as necessary for either a change in designation of primary residential parent or increased parenting time.

After oral arguments and a review of the record, the Appellate Court reversed the trial court’s judgment and remanded for further proceedings concluding the following:

The evidence in the record before us preponderates against the trial court’s finding that there was no material change of circumstance for the purposes of residential parenting time. In this case, the original parenting plan was entered in 2002, over 11 years before the trial court’s final order was issued…. Over a decade had passed since the entry of the prior custody order. Even discounting Father’s testimony, without a doubt Child’s needs have changed significantly since the entry of the prior custody order in 2002. Both Father and Mother have also had significant changes in their living conditions by the addition of other people to their households.

These changes were material under the lower threshold of Tennessee Code Annotated 36-6-101(a)(2)(C). Therefore, the trial court should consider, consistent with the requirements of Tennessee Code Annotated 36-6-106(a) & 404(b) (2014), whether it is in Child’s best interest to grant Father greater parenting time.

If you believe a material change of circumstance has occurred in your custody arrangement and a change would be in your children’s best interest, contact family law Attorney Donna Wagner to schedule a consultation.

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