Facts: Mother and Child relocated from Tennessee to New York State. Father’s court-ordered parenting time was to take place mostly during the summer and school holidays. After Father alleged Mother had thwarted his visitation on three occasions, Father filed a Petition for Contempt and to Change Custody. Father alleged Mother’s conduct amounted to a material change of circumstances. After a hearing, the trial court opined that Mother was “mean spirited” and had committed “three big bad violations of court orders.” The trial court expressed fear that if Mother were allowed to retain custody, she would continue to defy court orders, and the parties would have to come back to court “again, and again, and again, which will certainly not be in the child’s best interest.” The trial court granted Father’s Petition and changed custody from Mother to Father. Mother appealed.

On Appeal: The Court of Appeals, in a 2-1 decision, reversed the trial court.

Failure to follow an existing parenting plan or court order regarding custody and visitation can constitute a material change of circumstances in two ways. First, Tennessee Code Annotated § 36-6-101(a)(2)(B) provides that a material change of circumstances can be shown by “failures to adhere to the parenting plan or an order of custody and visitation.” Second, a custodial parent’s failure to allow court-ordered visitation by the other parent can constitute a material change of circumstances because it implicates the custodial parent’s willingness “to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.” See Tennessee Code Annotated § 36-6-106(a).

While trial courts are given wide discretion in custody cases, their decisions must be supported by the preponderance of the evidence. After examining the evidence in this case, the Court made the rare finding that the evidence did not support the trial court’s conclusion, much less its characterization that Mother committed “three big bad violations of court orders.”

The details of the claimed violations are in the Opinion. Going into those details is beyond the scope of this brief blog (“blawg”) post. After examining the details, however, the Court concluded:

[T]he evidence preponderates against the findings of the trial court that Mother willfully violated the visitation provisions of the existing order and, consequently, hold that there was no material change of circumstances to allow a change of custody. Since the missed visitations can be attributed to the actions of Father as much, or more so, as those of Mother, Father has not met his burden of establishing that there has been a material change of circumstances.

The Court directed the trial court to effect a smooth transition for Child back to Mother’s custody in New York State.

Dissenting Opinion. Judge Clement wrote that he would have been more deferential and affirmed the trial court.

I acknowledge that reasonable minds could differ as to whether the difficulties Father experienced in attempting to visit with his child were due in whole or in part to Mother’s failure to adhere to the letter or spirit of the parenting plan. Nevertheless, the juvenile court made its findings that Mother repeatedly failed to adhere to the parenting plan; although the evidence on this issue is disputed, in my opinion the evidence does not preponderate against these findings.

For these reasons, I would affirm the ruling of the juvenile court designating Father as the primary residential parent.

Note: One of the reasons the trial court was reversed was because there was no order entered at the time of the alleged violations. For whatever reason, entry of the operative order was delayed some six months. Because there was no written order, the Court found Mother had complied with the order that existed at the time of the claimed violations. This problem could have been averted if the order had been entered in a timely manner. Moral of the story: get orders entered in a timely manner. Most local rules set timelines that, in my experience, many lawyers ignore, often to the client’s detriment, as happened here.

In re Becka L.A.K. (Tennessee Court of Appeals, Middle Section, March 30, 2011).

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