Facts: Parents were divorced and Father was alternate residential parent. Father filed a petition to modify custody based upon the criminal indictment of Mother’s husband, the childrens’ stepfather, for a string of arsons, including the allegation that Mother transported Stepfather to and from the crime scenes. After a hearing, the trial court changed custody to Father, finding “a dangerous situation has been created by the actions of [Mother] and her relationship with her present husband who is currently in custody pursuant to a Federal Indictment.” Mother later filed her own petition for modification alleging she was divorcing Stepfather, who remained incarcerated and was no longer a threat the children. After a hearing, the trial court changed custody back to Mother, finding Mother had proved a material change of circumstances:

In regards to [Mother’s] Petition for Modification, the Court finds that a material change in circumstance has occurred in that the dangerous situation which existed in October 2007 when the Court changed custody from [Father] to [Mother] no longer exists.

In regards to [Mother’s] Petition for Modification, the children, ages 17 and 14, have expressed their desire to the Court to return to the custody of their Mother. . . .

Father appealed.  The Court of Appeals affirmed the trial court in part and vacated the trial court’s ruling in part.

First, the Court ruled that removing the problem that led to the first modification is necessarily a material change in and of itself.

Mother testified to the steps she had taken to eradicate [Stepfather] from her and the children’s lives. The evidence contained in the record does not preponderate against the Trial Court’s finding that the threat once posed by the presence of [Stepfather] has been eliminated by Mother and the federal criminal prosecution of [Stepfather].

If [Stepfather’s] presence or potential for being present was such that it presented a threat to the children which constituted a material change in circumstances in November 2007, it necessarily follows that the removal of that threat also constitutes a material change in circumstances. Accordingly, we conclude that the evidence does not preponderate against the Trial Court’s finding that Mother had proven a material change in circumstances.

Second, the trial court erred by failing to conduct the best interest analysis required by Tenn. Code Ann. § 36-6-106(a) after finding the material change of circumstances.  For that reason, the change of custody was vacated and the trial court was directed to perform the best interest analysis.

Robinson v. Irons (Tennessee Court of Appeals, Oct. 7, 2010).

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