Facts: Mother and Father, the parents of one child, divorced in June 2005. Mother was designated the primary residential parent. Six years later, Child – now 10 years old — began telling Father that Mother often left him at home by himself. Father saw several text messages from Child to Mother at night where Child was asking Mother where she was and when she would be home, and telling her that he was hungry. Child also began asking Father how to use a gun. When queried by Father, Child explained that Mother showed him where she kept a gun in her house that Child could use for protection when he was in the house by himself.
Father filed a petition to change custody. The proof at trial, including the testimony of Child, supported Father’s allegations. After the trial court found a material change of circumstances, the proof then turned to the issue of Child’s best interest. The trial court found that Mother’s behavior placed Child at risk of harm and was detrimental to Child’s well-being. The trial court ruled, however, that Mother’s behavior was not enough to “justify such a drastic measure as a change in custody.” The trial court did order that there shall be no weapons in the home that are not locked or concealed.
On Appeal: The Court of Appeals reversed the trial court.
Decisions involving the custody of a child are among the most important decisions courts face. In considering questions involving parenting arrangements for children, the needs of the children are paramount and the desires of the parents are secondary. Decisions on parenting arrangements should be directed towards promoting the child’s best interest by placing the child in an environment that will best serve the child’s physical and emotional needs.
Where a parent files a petition to modify a parenting plan, the analysis is a two-step process. First, the parent who seeks to modify the existing parenting arrangement has the burden of proving the requisite material change in circumstances. If a material change in circumstances has occurred, the trial court then must ascertain whether a change in the designation of primary residential parent is in the child’s best interest, considering the factors in Tennessee Code Annotated § 36-6-106(a).
After reviewing the record, the Court ruled:
[Child] testified that, on numerous occasions, Mother left the 10-year old alone in the evening to go socialize at the local country club, showed the child a gun under her mattress and told him to use it for his protection if needed, and returned hours later, intoxicated….
The ways in which such a scenario could go badly wrong are incalculable. Father testified that, when [Child] blurted out to him on the telephone that Mother had left him at home to go drink at the country club and showed the child a gun to use in her absence, it “blew [him] away.” We agree. The evidence indicated that this was not an isolated incident, but rather was a pattern of poor judgment. Such “evidence shows clearly that Mother consistently exercised poor judgment and prioritized her own needs and desires above those of her child….”
“[A] decision regarding the child’s best interest should be designed to ‘promote children’s best interests by placing them in an environment that will best serve their physical and emotional needs.'” The evidence in this record preponderates against the trial court’s factual finding that [Child's] best interests are served by leaving Mother as his primary residential parent, and preponderates in favor of a finding that Father’s home will best serve the child’s “physical and emotional needs.”
Accordingly, the trial court was reversed and the case was remanded for further proceedings.
K.O.’s Comment: It is worth nothing that in a footnote the Court referenced the trial court’s order that any gun in either parent’s home must be “locked or concealed.” On this specific issue, the Court commented: “Respectfully, it is wholly inadequate to order that a firearm in a home with a child be ‘concealed’ from a curious child. Any firearm in a home with a child must be securely locked in a device specifically made to ensure that a child who finds the firearm cannot access it.”
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.
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