Facts: Parents were divorced with Mother named the primary residential parent of the parties’ Child. The Parenting Plan provided as follows:

The parties shall abstain from the over-consumption of alcohol while the minor child is in his/her possession. Additionally, the parties shall not take any illegal substance or be under the influence of the same while the minor child is in his/her possession. Further, both parties agree that, when the minor child is present, to not have any person with whom he/she is romantically involved, absent marriage, overnight.

Father filed a petition to modify the parenting plan to name him as the primary residential parent for Child.  After an evidentiary hearing, the trial court granted his petition.  Mother appealed.

The Court of Appeals affirmed the trial court.

The Court began by noting the standard for determining whether a material change of circumstances has occurred:

Although there are no bright line rules as to whether a material change in circumstances has occurred after the initial custody determination, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

The trial court heard evidence of Mother’s drug use and sexual behaviors, including numerous relationships in which Mother conceded she exercised bad judgment.  Nonetheless, Mother argued “the trial court committed a material error of law by focusing on her own behavior, which she admits was inappropriate, rather than on whether that behavior affected [Child’s] well-being.”

In the present case, there was at least some evidence that Mother’s dalliance with drugs and with some of her sexual partners did have an adverse effect on the child [including testimony from Child about being “scared” when staying overnight at the home of one of Mother’s paramours]. It may therefore be a close call, but we believe that the evidence does not preponderate against the trial court’s conclusion that there was a material change of circumstance that affected the child in a meaningful way, or made the existing parenting plan no longer in the best interest of the child. . . .

When we consider all these relevant factors and the evidence presented, we find that both parties are capable of taking good care of the child, but that insofar as the child’s best interest lies in being placed in the care of one parent rather than the other, that interest is served by her residing primarily with Father. We therefore conclude that the trial court did not abuse its discretion when it designated Father as the child’s primary residential parent, and we accordingly affirm the decision of the trial court.

Murray v. Murray (Tennessee Court of Appeals, Sept. 28, 2010).

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