Facts: At the time of divorce, Mother was named the primary residential parent of Child, and Father was granted visitation. Two years later, Mother and Child relocated to Florida. At mediation in February 2007, the parties agreed on a revised parenting plan that kept Mother as the primary residential parent but adjusted Father’s parenting time to reflect the relocation. The agreed upon revised parenting plan was adopted by the trial court in an agreed order entered in August 2007. In December of 2007, Father filed a petition seeking a change of custody alleging that a material change in circumstances had occurred. After a trial, the trial court found there had been a material change in circumstances since the mediation in February 2007, that Father should be named the primary residential parent, and that the joint decision making would be changed such that Father would sole decision-making authority. Mother appealed.
On Appeal: The Court of Appeals reversed the trial court.
Mother first argued the trial court erred by considering evidence of events that occurred prior to the entry of the last order in August 2007.
While there are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody, the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: (1) the change “has occurred after the entry of the order sought to be modified,” (2) the change “is not one that was known or reasonably anticipated when the order was entered,” and (3) the change “is one that affects the child’s well-being in a meaningful way.” If a material change in circumstances is proven, it must then be determined whether the modification is in the child’s best interests. It necessarily follows that if no material change in circumstances is proven, the trial court is not required to make a best interests determination and must deny the request for a change of custody.
The Court began by noting what is stated above, namely the material change in circumstances must have occurred “after the entry of the order sought to be modified.”
In the case now before us, the order sought to be modified was entered on August 3, 2007. Thus, it is this date, not the date upon which the parties mediated an agreement, which must be used as the starting date to determine if a material change of circumstances has occurred sufficient to warrant a change of custody. The Trial Court erred when it considered matters prior to the entry of the order on August 3, 2007 because it “measured the changes of circumstances from the Mediated Agreement of February 5, 2007 . . .” rather than from the August 3, 2007 date the order was entered. . . . We agree with Mother that only matters occurring after August 3, 2007 may be considered in determining whether a material change of circumstances had occurred, and we will not, and do not, consider events occurring prior to that date.
Father argued the mediated agreement was enforceable when executed as a matter of contract law. The Court quickly rejected this argument because once a trial court has entered a permanent parenting plan establishing child custody, visitation, and support, the parties cannot change that plan without the trial court’s approval of the proposed changes.
Mother then argued the trial court erred in finding a material change of circumstances at all. The Court observed:
The evidence shows that Father was not able to have the Child during two occasions when the Child was visiting Knoxville with Mother, but that those occasions were during times when Mother was scheduled to have the Child pursuant to the Parenting Plan. Thus, Father was not denied any visitation he was supposed to have during either of these incidents. Furthermore, the evidence shows that Mother did work with Father to re-arrange the schedule for Thanksgiving. The evidence in the record also shows that Father has been able to have regular telephone and Skype conversations with the Child as set in the Parenting Plan. Thus, the record does not show that Father has been denied his rightful access to the Child. In fact, the evidence reveals that Father wrongfully kept the Child during time that the Child was supposed to be with Mother pursuant to the Parenting Plan when Father failed to return the Child to Florida on time after Father’s wedding.
The evidence in the record preponderates against the finding that a material change in circumstances occurred after August 3, 2007. As such, it is unnecessary to consider the issue of best interests. We reverse the Trial Court’s August 4, 2009 order changing custody.
The Court then took the unusual step of admonishing both parents for bad behavior.
The Trial Court found that Mother had been “largely present during Skype conversations between the child and his Father . . . .” The evidence in the record does not preponderate against this finding, and this behavior is inappropriate on the part of Mother.
The record also shows that Father has lied to Mother with regard to visitations with the Child, most notably with regard to Father’s and his new wife’s wedding. Although the pre-printed wedding invitation introduced as an exhibit clearly shows that Father’s wedding was scheduled ahead of time to occur on Sunday evening, Father deliberately lied to Mother telling her that the wedding was scheduled for Saturday and that Father would return the Child to Mother on Sunday. . . . This is an example of Father behaving in a devious manner with regard to his communications with Mother.
The record reveals that both Mother’s and Father’s respective new spouses have been positive influences in the Child’s life. The Child is fortunate to have both parents and step-parents who love him and are concerned with his well-being. We sincerely hope that both Mother and Father take heed and behave in a manner consistent with the best interests of the Child.
Time will tell.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce And Family Law Attorney.