Posted by: koherston | August 25, 2011

Post-Divorce Change of Child Custody: Wall v. Wall

Facts: At the time of divorce, Mother was designated as the primary residential parent of the parties’ daughter. Two years later, Father filed a petition to modify the decree to designate him as the primary residential parent. Father alleged Mother had inadequate child care arrangements while Mother was at work, and that Mother had not been adequately caring for Child’s basic personal and educational needs. The parenting plan was temporarily modified to designate Father as the temporary primary residential parent. After a hearing, the trial court found a material change in circumstances, but found it was not sufficient for the “drastic remedy” of changing the primary residential parent to Father on a permanent basis. Father was awarded substantially more parenting time, however. Father appealed.

On Appeal: The Court of Appeals reversed the trial court’s refusal to change custody but affirmed the trial court’s ruling on temporary child support.

The Court characterized the trial court’s ruling as having found a material change of circumstances sufficient to consider changing custody but then finding that such a change was not in Child’s best interest.

A decision regarding the child’s best interest should be designed to “promote children’s best interests by placing them in an environment that will best serve their physical and emotional needs.” Parenting decisions should not be intended or designed “to reward parents for prior virtuous conduct, nor to punish them for their human frailties or past missteps.” Always, the best interest of the child is paramount.

The Court began its analysis by observing that the day-to-day parenting schedule implemented by the trial court is “remarkable in its complexity, driven in part by Mother’s early-morning work schedule.”

[T]he burden on the child of such a parenting schedule is no small matter. A parenting schedule that requires the child to shuttle frequently between households, whether implemented to accommodate parental work schedules or in order to neatly divide the child’s time between the parents, is most onerous for the child who bears the brunt of the parents’ divorce. The child must be ever mindful to have with her necessary school books, supplies, clothing, or even toys or sports equipment, and must be vigilant to be ready to gather her belongings at the appointed time for transportation to the other parent’s house. Even mundane things such as making a play date with a friend or scheduling an after-school activity require the child to ascertain in which parent’s home she will be or who is picking her up and when. All children must tolerate some of these considerations, and a child of divorced parents must necessarily have a more complicated schedule than children from intact homes, if the child is to have a meaningful relationship with both parents. But a schedule that mandates such frequent back-and-forth, whether to accommodate a parent’s work schedule or not, gives the child little opportunity to have a sense of belonging, and time to simply be home becomes a luxury.

Thus, while virtually all divorced parents must work outside the home, and some parents must work atypical hours, it is not punishment to the parent to consider the effect of her work schedule on the child. Rather, it is the court’s job to ensure that the everyday quality of the child’s life is not sacrificed to meet the parents’ needs or desires. Consideration of how “child-friendly” each parent’s schedule must necessarily be part of that determination. “[T]he child’s best interest in the paramount consideration. It is the polestar, the alpha and omega.” In this case, it is not unfair to Mother to consider the effect of her work schedule on [Child]; rather, it is unfair to [Child] not to consider it.

The Court says this observation, standing alone, would not constitute an abuse of the trial court’s discretion. The Court concludes “the evidence shows clearly that Mother consistently exercised poor judgment and prioritized her own needs and desires above those of her child.”

The undisputed evidence showed that Mother consistently left six-year-old [Child] alone in the care of eleven-year-old [Half-Sibling] for long periods of time while she was at work. She ostensibly relied on neighbor Carrie, who was in a nearby apartment and available “if needed,” though sometimes asleep. For reasons never fully explained, Mother refused Father’s offer to provide child care, and even cursed him for asking about her child care arrangements and the identity of the caregiver for their child. . . . The record shows that Mother’s practice of leaving [Child] in [Half-Sibling’s] care continued even after the trial court explicitly prohibited it, and that it was curtailed only when Father and Stepmother were permitted to pick up [Child] in the mornings when Mother left for work.

Mother’s judgment on after-school child care arrangements showed a similar lack of judgment. Although Mother’s testimony sought to cast the arrangements in a favorable light, the evidence is undisputed that . . . six-year-old [Child] was deposited by the school bus at the bus stop, alone, and left to walk to Carrie’s apartment, or Melissa’s apartment, or the apartment of another available adult caregiver to take charge of her. Again, this practice ended only when Father and Stepmother were permitted to pick up [Child] after school and care for her until Mother’s work shift ended.

The undisputed evidence shows that Mother repeatedly either had male friends spend the night in her apartment, or she brought the children with her to the home of a male friend and “ended up” staying most or all of the night. . . .

The testimony of [the court-appointed child custody expert] incorporating information from multiple teachers, indicates that Mother’s care of [Child] was inattentive, with little heed paid to communications from teachers, school assignments, appointments with the psychologist, even clothing and hygiene. Mother’s testimony sought to depict such statements from teachers, the psychologist, or the guardian ad litem as uninformed, mistaken, untrue, or even “crazy.”

The Court contrasted the comparative fitness of the parents as follows:

All of the evidence showed that [Child] was more happy, secure, and self-confident while Father was the temporary primary residential parent. Indeed, the proof showed that, while Father was the temporary primary residential parent, [Child’s] overall sense of well-being was disturbed primarily by incidents that occurred during Mother’s parenting time.

The Court concluded the preponderance of the evidence establishes that it was in Child’s best interest to designate Father as her primary residential parent. The case was remanded to the trial court to formulate a consistent parenting plan.

Wall v. Wall (Tennessee Court of Appeals, Western Section, July 14, 2011).

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


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