In re Isaiah S.

Facts:  The unmarried parents entered a parenting plan in 2004.  In 2009, Father filed a petition to change custody alleging that Mother had constantly interfered with his parenting time.  The trial court found Mother’s actions to constitute a material change of circumstances and changed custody, naming Father the primary residential parent and entering a new parenting plan.  Mother appealed.

The Court of Appeals affirmed.  First the Court addressed what constitutes a material change of circumstances.

While “[t]here are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody,” the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change “has occurred after the entry of the order sought to be modified,” the change “is not one that was known or reasonably anticipated when the order was entered,” and the change “is one that affects the child’s well-being in a meaningful way.”

After examining the trial court record, the Court found a troubling history of ill-advised conduct by Mother.

The trial court reviewed the litigious history of the parents and found that:

Father has been forced to be involved in unnecessary litigation: (1) to receive his court-ordered 30 day summer visitation as designated by the parenting plan and denied by Mother in 2004; (2) to receive his court-ordered Spring Break visitation as designated by the parenting plan and denied by Mother in 2005; (3) to obtain court intervention in order to allow the minor child to play football as previously agreed upon but ultimately refused by Mother in 2007; (4) and now to change custody due to Mother’s continual pattern of failing to adhere to the joint decision making process ordered in the parenting plan, her interfering with Father’s court-ordered visitation in 2008, and Mother exposing the minor child on a regular and weekly basis to her serious involvement with a convicted felon on probation.The trial court also found that the past episodes of litigation were “primarily due to Mother’s pattern of deliberately interfering with Father’s court-ordered visitation rights and Mother’s refusal to adhere to the parenting plan.”

The current action between the parties is based on a couple of instances. In 2007 Mother and Father jointly agreed, pursuant to the parenting plan, to enroll Isaiah in Trinity Elementary. Mother unilaterally enrolled the child in another school without informing Father. The trial court found Mother’s reason for doing so “not to be credible.”

The final straw precipitating the current action has its origin in Father’s 2008 Christmas vacation. The parenting plan grants Father visitation with Isaiah one week prior to Christmas Day in even-numbered years. In 2006 Father began the visitation on December 18.th In 2008 Mother denied Father visitation until December 19th with no discussions of what constituted “a week prior to Christmas Day.” The trial court viewed these instances as part of “Mother’s pattern of denying Father his court-ordered time,” and a reflection of Mother’s “unwillingness to co-parent effectively and her desire to manipulate the parenting time in her favor.”

The Court noted that Tenn. Code Ann. § 36-6-101(a)(1)(B) provides that “failures to adhere to the parenting plan or an order of custody and visitation” can constitute a material change of circumstances and found there was ample evidence in the record to support that finding.

In re Isaiah S. (Tenn. Ct. App. Aug. 11, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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