Facts: Mother and Father became teenaged parents. They entered an agreed parenting plan designating Mother as the primary residential parent. When Father married Stepmother, problems arose. Stepmother and Father made numerous reports about Mother to the Department of Children’s Services and local police, neither of which took any action against Mother. Father filed a petition for modification of the parenting plan to designate him as Child’s primary residential parent. Father alleged that a material change in circumstances had occurred since the entry of the permanent parenting plan, to wit: Child’s educational needs were not being met by Mother; that under Mother’s care, Child was excessively absent or tardy to school; that Mother did not have a stable home; that Mother prevented Father from exercising his parenting time; and other complaints. The trial court found no material change of circumstances justifying a change of custody. Father appealed.

The Court of Appeals affirmed the trial court.

From our review of the record, according appropriate deference to the trial court’s findings on credibility, we find that the record supports the trial court’s finding that the child’s absenteeism problems, though serious, were largely resolved by the time of trial. On this basis, the cases cited by Father are distinguishable in that each involves a situation in which the child’s attendance issues remained unremedied as of the time of trial.

Overall, while the trial court recognized that there were problems between the parties, it found that they did not amount to a material change in circumstances for purposes of changing the designation of the primary residential parent. Instead, the trial court addressed the issues by requiring the parties to attend counseling, admonishing Mother to refrain from actions that interfered with Father’s parenting time, instructing Stepmother to “stay out of this,” directing Father to communicate with Mother about [Child], and clarifying the parenting order on Father’s residential parenting time and holidays.

Overall, from our review of the record, and according appropriate deference to the trial court’s evaluation of the witnesses’ credibility, we must conclude that the evidence does not preponderate against the trial court’s finding that these facts did not rise to the level of a material change in circumstances for custody purposes.

The Court applied its usual deference to the trial court’s findings on credibility. What is somewhat troubling is the Court’s discussion about Child’s excessive tardies/absences, specifically its apparent dismissal of Father’s concerns about these “serious problems” so long as they were “largely resolved by the time of trial.” Does this mean that simply remedying the problem by the time of trial will defeat a claim of a material change of circumstances?

In re Kaitlyn M.W. (Tennessee Court of Appeals, Dec. 28, 2010).

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