Facts: Juvenile Court awarded custody of child to Father and visitation to Mother. A year later, Father filed a petition to relocate to Memphis to accept a job offer with greater income. Mother opposed the relocation attempt and moved to modify the custody decision based on alleged instability in Father’s life, including “foreclosure on Father’s home and repossession of one of his vehicles, Father’s permitting several different women to reside with him, Father’s arrest for domestic violence and assault, entry of an order of protection against Father with regard to a former girlfriend, and Father’s arrest for DUI.” After the initial hearing concluded but before the trial court entered its ruling, another incident occurred that caused the trial court to re-open the proof. Upon hearing additional proof limited to events occurring after the conclusion of the first hearing, the trial court denied Father’s request for relocation and changed custody to Mother. Father appealed on both issues.
On Appeal: The Court of Appeals affirmed the trial court.
After the first hearing,
the court stated to the parties that “this was a really close case regarding a change of custody” and expressed concerns about Father’s questionable decisions regarding his finances and “extracurricular activities,” his drinking, the number and frequency of his girlfriends, the fact that his fianceé was married to another man, and his failure to meet the conditions of his probation and to make the resolution of a pending DUI charge a priority.
After the second hearing in which the court re-opened the proof, the court found:
[S]ince [the date of the court’s initial oral ruling], Father was involuntarily terminated from his employment at [the job in Memphis that was the basis for the relocation]; that he is “flat broke busted;” that he pled guilty to DUI 1st on June 4, 2009, was. scheduled to serve his forty-eight (48) hours in jail on June 15, 2009 as a result of his DUI conviction, and failed to appear to serve his time; and that Father has, since May 27, 2009, established a relationship with, and married, a different woman than the woman he was engaged to marry during the May hearings. . . . Father further testified that the incident which occurred in his home while the minor child was present on June 13, 2009 at approximately 1:00 a.m. involving [a third party] was “just horseplay;” that as a result of the incident [the third party] was charged with Aggravated Assault; and that Father received a 4 ½ inch gash above his right eye which required him to go to the hospital and receive numerous stitches to repair the injury. . . . Officer Rapp with the Hendersonville Police Department testified that Father’s face, chest, stomach and hands were covered in blood, and there was a pool of blood on the front porch. . . . The minor child testified that she saw her Father in this condition, and witnessed the blood on the porch. The minor child further testified that she was awakened by yelling and cursing. The Court finds this to be very disturbing for the minor child.
Based on the foregoing, the Court concluded:
The trial court’s findings, considered together, evidence Father’s unstable lifestyle, something that affected the child in that she was exposed to Father’s changing relationships with women and to the violence of some of his friends. We cannot find that the evidence preponderates against the trial court’s finding that there was a material change of circumstances in this case.
Father did not challenge the trial court’s findings regarding the child’s best interest. Notably, the trial court found:
[T]his Court is impressed with the commitment and effort Mother has made towards her child. Mother testified that, since she was awarded temporary custody of the minor child on June 29, 2009, Mother has enrolled minor child in gymnastics and cheerleading; Mother has registered the minor child in Mother’s designated school zone; and Mother has taken the minor child to her counseling appointments as ordered by this Court on May 27, 2009. According to testimony from Mother and the minor child, they have a close, loving bond.
As for relocation, Father conceded his argument was moot if the Court agreed with the trial court’s decision changing custody because unless he is the primary residential parent or spends substantially equal time with the child, Father cannot seek to relocate with the child. See Tenn. Code Ann. § 36-6-108.
Information provided by K.O. Herston, Tennessee Divorce Lawyer.