Posted by: K.O. Herston | June 6, 2013

Change of Child Custody Reversed in Crossville Post-Divorce Dispute: Garrett v. Garrett

Facts: The parties divorced with a parenting plan that equally split parenting time but designated Mother as the primary residential parent.

Shortly thereafter, Mother enrolled the children in a school close to her residence. Father objected and sought relief from the court, which entered an ex parte order directing the Parents to keep the children enrolled in the pre-divorce school.

The Cumberland County Board of Education (“the Board”) filed a motion to intervene and a motion to set aside the order, asserting that its policy provided that students were to be enrolled in the district in which the primary residential parent resided and that the court’s order violated that policy.

Mother then requested clarification or a change in the parenting plan, providing that she was entitled to make decisions pertaining to education.

Father argued that Mother’s unilateral decision to change the children’s school was not in the best interest of the children. He asserted that designating him as the primary residential parent would be in the best interest of the children and would remove the Board’s confusion caused by the ex parte order.

The trial court found that the Board had a right to intervene as a matter of law. The trial court also found that the children were in need of stability, that Mother’s unilateral decision to enroll the children in a new school was contrary to the need for stability, and that it was in the best interest of the children to designate Father as the primary residential parent, thereby allowing the children to remain enrolled in the pre-divorce school.

Mother appealed.

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

Can the Board of Education intervene in this post-divorce dispute? Intervention as of right is governed by Rule 24.01 of the Tennessee Rules of Civil Procedure, which provides:

Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties; or (3) by stipulation of all the parties.

There are essentially four elements that a party seeking to intervene as of right must establish before an application for intervention will be granted. The party must show that: (1) the application for intervention was timely; (2) he or she had a substantial legal interest in the subject matter of the pending litigation; (3) the ability to protect that interest is impaired; and (4) the parties to the underlying suit cannot adequately represent that interest. While the precise nature of the interest required to intervene as of right has eluded exact definition, it is clear that the right does not include a mere contingent, remote, or conjectural possibility of being affected as a result of the suit, but must involve a direct claim on the subject matter of the suit such that the intervenor will either gain or lose by direct operation of the judgment.

Rule 24.02 of the Tennessee Rules of Civil Procedure provides:

Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising discretion the court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

The Court concluded:

Here, the application for intervention was timely. The Board also had a legal interest in the subject matter because it had been granted the authority to enact policy regarding enrollment of students. However, we fail to see how that interest was substantial when custody decisions must be made in the best interest of the child, regardless of any countervailing policies that may be implicated….

The court noted that its designation of Father as primary residential parent allowed the Children to remain in the current school district pursuant to the Board’s policy, thereby fulfilling the need for stability. We believe that the court’s consideration of the Board’s policy prejudiced the adjudication of the rights of the Parents and the best interest of the Children because the need for stability was but one of the factors that should have been considered by the court before revising the permanent parenting plan.

Was there a material change of circumstances sufficient to justify a change in the primary residential parent designation? Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. If a material change in circumstances has occurred, it must then be determined whether the modification is in the child’s best interest.

The determination of whether a “material change in circumstance” occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule. The Tennessee Code establishes a lower threshold for modification of a residential parenting schedule.

There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider 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.

After reviewing the record, the Court ruled:

The trial court failed to specifically find or identify any changed circumstances that warranted a change in custody. Father asserts that Mother’s failure to adhere to the parenting plan by unilaterally enrolling the Children in a new school operated as a material change in circumstance supporting the court’s decision. We disagree. The Board’s policy regarding enrollment was readily available to the Parents. Additionally, it was entirely foreseeable and reasonably anticipated that the Parents would live in different school zones, thereby necessitating a decision regarding which school the Children should attend in accordance with relevant policies regarding enrollment. We agree that Mother should have discussed the issue with Father before enrolling the Children in the new school. However, we decline to hold that her failure to speak with Father before enrolling the Children in school pursuant to the established enrollment policy was an unforeseen material change in circumstance that necessitated a change in custody.

Accordingly, the trial court’s change of custody was reversed.

Garrett v. Garrett (Tennessee Court of Appeals, Eastern Section, April 12, 2013).

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


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