Posted by: K.O. Herston | December 27, 2012

Post-Divorce Change of Child Custody Denied in Tennessee: In re Preston C.G.

Facts: At the time of divorce, the parties shared equal parenting time with Child. A few years later, the parenting arrangement was modified to designate Mother as the primary residential parent with Father’s parenting time occurring on the first, third, and fifth weekends of the month. Nearly one year later, Father petitioned to modify custody and be named the primary residential parent of Child. Father alleged the following constituted a material change of circumstances: Mother’s pleading guilty to two counts of possession of a controlled substance resulting in a two-year suspended sentence, her pending harassment charge, her screaming obscenities about father or his family while on the telephone with Child, her failure to foster a good relationship between Child and Father, and her inconsistent employment.

The trial court found that a material change of circumstances had occurred. It conducted a detailed best interest analysis and held Father’s parenting time should increase to include an additional weekend per month. The trial court determined, however, that Mother shall remain the primary residential parent. Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

In order to modify custody in an existing parenting plan, a trial court must engage in a two-step analysis. First, the court must determine whether a material change in circumstances has occurred since the entry of the prior order. The party seeking modification has the burden of proving a material change in circumstances. Tennessee has different criteria for determining whether a material change of circumstance has occurred to justify modification of “custody” or a “residential parenting schedule.” In this case, the statutory criteria related to modification of “custody” in Tennessee Code Annotated § 36-6-101(a)(2)(B) was the proper standard because Father requested a change in Child’s primary residential parent.

Second, upon finding a material change in circumstances has occurred, the court must consider the factors enumerated in Tennessee Code Annotated § 36-6-106(a) and make a determination whether it is in the child’s best interests to modify the current custody arrangement.

The Court found Mother’s criminal behavior and her inappropriate comments toward Child constituted substantial and material changes that affected the child’s well-being in a meaningful way.

Father then argued that Mother’s unwillingness to foster a relationship between him and Child should necessitate a change in Mother’s status as primary residential parent.

After reviewing the statutory factors in Tennessee Code Annotated § 36-6-106(a), the trial court found that five factors weighed in favor of Father, one favored Mother, and four favored the parties equally. Ultimately, the trial court concluded that the “best interest of the child would be best served if he were to spend more time with his Father.” However, the trial court determined that because of the distance between the parties, their work schedules, and Child’s school schedule, it was not possible to split the parenting time equally between the parties. As a consequence, the trial court increased Father’s parenting time and left Mother as Child’s primary residential parent.

Father [argues] “it is the public policy of the State of Tennessee that a child’s best interest is served when (s)he is able to have a close and loving relationship with both parents.” We agree that encouraging each parent to maintain “a loving, stable, and nurturing relationship with the child” is of great importance. However, courts are not required to elevate this policy concern over the other factors enumerated at Tennessee Code Annotated § 36-6-106(a). Moreover, Father’s contention fails to acknowledge the preference of the legislature and the courts toward “continuity and stability” in residential placement and schedules.

Our review of the record leads us to conclude that the trial court appropriately reviewed the factors at Tennessee Code Annotated § 36-6-106 and considered them in light of the importance of the child’s stability with regard to the parenting arrangement. As the trial court pointed out, Mother has been the primary caregiver for [Child] for the majority of his life, and the evidence shows that [Child] has thrived under her care. The evidence does not preponderate against the trial court’s determination that Mother should remain [Child's] primary residential parent; thus, we affirm the trial court’s ruling in all respects.

In re Preston C.G. (Tennessee Court of Appeals, Middle Section, November 15, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


Responses

  1. Wow she won without evening filing a brief and it was decided on briefs. Interesting. It’s good to know that it still comes down to the best interests of the child in the end.

    • Also factoring in the outcome: (1) great deference to the trial court; (2) a trial judge who clearly considered the statutory factors and made specific factual findings supporting his conclusion. Still, it is impressive to win without showing up. I wonder if Mother will be so lucky in her criminal proceedings.


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