Posted by: koherston | July 25, 2011

Relocation and Change of Child Custody in Tennessee: Stansberry v. Mery

Facts: Mother and Father divorced in 2000 and agreed to joint custody of their two children with a parenting schedule that provided for equal time. In 2008, Father notified Mother of his intent to relocate to North Carolina and take the children with him. Mother filed a petition opposing Father’s requested relocation with the children. Mother argued the children had lived in Hamblen County their entire lives, did well in school, had many relatives and friends in Hamblen County, and were active in their church and other extra-curricular activities. Father complained about Mother’s parenting fitness, including the only-in-Tennessee claim that Mother once “did donuts in the car while the children were present.” After a hearing, the trial court granted Mother’s petition, modified the parenting plan to name Mother the primary custodian, and established Father’s visitation at one weekend per month and seven weeks in the summer. Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Father argued the trial court’s ruling was contrary to the evidence of what is in the children’s best interests. In other words, Father wanted a “do over” on appeal. As the Court explains, family law appeals don’t work that way.

This Court has previously stated that appellate courts are “reluctant to second guess” a trial court’s determination regarding custody and visitation because such decisions often hinge on subtle factors, such as the parents’ demeanor and credibility during the proceedings. Trial Courts have broad discretion to fashion custody and visitation arrangements that best suit the unique circumstances of each case, and we will only set aside a trial court’s decision regarding custody or visitation when it “falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.”

After reviewing the record, the Court concluded the trial court’s ruling did not “fall outside” that spectrum.

Father then argued the trial court failed to consider the preference of the 13-year old child, who expressed a preference to relocate with Father. The record, however, showed the trial court heard and and considered the child’s preference.

We have stated on numerous occasions that a child’s preference is only one of many factors to be given consideration in a custody determination. While a child’s preference can be considered, it is not controlling on the court. This Court has also held that it was error for a trial court to base its custody determination solely on the minor child’s testimony regarding preference.

Finally, Father argued the trial court erred in not awarding him more parenting time. The Court explained the limited review afforded to such decisions on appeal.

It is not the function of appellate courts to tweak a visitation order in the hopes of achieving a more reasonable result than the trial court. Appellate courts correct errors. When no error in the trial court’s ruling is evident from the record, the trial court’s ruling must stand. This maxim has special significance in cases reviewed under the abuse of discretion standard. The abuse of discretion standard recognizes that the trial court is in a better position than the appellate court to make certain judgments. The abuse of discretion standard does not require a trial court to render an ideal order, even in matters involving visitation, to withstand reversal. Reversal should not result simply because the appellate court found a “better” resolution. An abuse of discretion can be found only when the trial court’s ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.

The Court found there was no showing of abuse of discretion in fashioning the parenting plan, noting the trial court gave Father exactly what parenting time he had been willing to give Mother had he been named primary residential parent, and took into consideration the distance between the parties and the transportation of the children back and forth.

Stansberry v. Mery (Tennessee Court of Appeals, Eastern Section, June 20, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce And Family Law Attorney.


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