Facts: Father and Mother have two children. Both parents are active-duty members of the U.S. Army. They were divorced in Colorado in 2004. The parenting plan designated Mother the primary residential parent but provided for great flexibility in the event of military deployment. In the years thereafter, both parties were deployed and stationed at various locales around the world. During much of this time, the children were in the care of Father’s new wife (Father had remarried). When the children’s stepmother developed health problems, the children were cared for by their paternal grandmother. In April 2007, Father was transferred to Ft. Campbell in Clarksville, Tennessee, where he remained with the children while Mother was stationed in Hawaii. In 2009, Father filed a petition to modify the Colorado parenting plan to name him the primary residential parent for the children, alleging the children would be subjected to instability in their living and educational arrangements if he was not granted primary responsibility for their care. Mother subsequently filed petitions for emergency custody in both Hawaii and Tennessee courts. The Hawaii court deferred to the Tennessee court’s jurisdiction. After a trial, the trial court found there had been a material change of circumstances that affected the welfare of the children, that the children “had flourished while under the continuous care of their father,” and that their best interest required that Father be named the primary residential parent.

The court noted that Mother admitted that the children had been with Father for four out of the six years since the divorce and that Father testified that the children had been with him for 56 out of the 70 months since the divorce. While the court acknowledged that the original parenting plan contemplated that Father would have the children when Mother was deployed, it noted that Mother had not been deployed all of these 56 months, and that much of the time she could have had the children with her if she had desired to do so.

Mother appealed.

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

Mother first argued there had not been a material change of circumstances sufficient to change custody. Although there are no bright line rules as to whether a material change in circumstances has occurred after the initial custody determination, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way. Mother argued the parenting plan specifically anticipated that the scheduling of parenting time would at times depend upon the military obligations of the parties, and thus any change that occurred since then was not material because it was “known or reasonably anticipated when the order was entered.” The Court rejected this argument, noting

the principle of flexibility cannot be stretched so far as to negate the primary provisions of the original parenting plan — that the children would reside with Mother and that she would remain their legal custodian or primary residential parent. The plan did not contemplate that Father would assume primary responsibility for the children for the vast majority of the time after divorce, or that Mother would leave them in his care for long periods both before and after her deployments.

Mother then argued the change of custody violated Tennessee Code Annotated § 36-6-113, which specifically addresses the modification of parenting plans for mobilized members of the armed services.

Mother specifically points to Tennessee Code Annotated § 36-6-113(b), which prohibits the courts from permanently modifying a decree for child custody or visitation solely on the basis that one of the parents is mobilized or deployed outside the state or country. That provision prevents a non-mobilized or non-deployed parent from taking unfair advantage of the service of the other parent by using that parent’s temporary absence as a pretext for permanently altering an otherwise workable custodial arrangement. By its language, that provision does not apply to a parent who has been deployed out of state in the past but, instead, applies to a parent who “is a mobilized parent.” Additionally, we do not interpret § 36-6-113(b) as precluding a court from considering the actual experience of the children due to past deployments as a factor in making a modification decision.

In any event, the legislature balanced the above provision by enacting Tennessee Code Annotated § 36-6-113(e), which acknowledges the continuing power of the court to permanently modify custody decrees in cases where successive or repeated deployments by the primary residential parent renders that parent unavailable on a long-term basis to effectively supervise and care for a child. We also believe that the reference to a parent who “volunteers” for such duties encompasses Mother’s situation, where her voluntary re-enlistment and choice of duty station made her subject to a strong possibility of additional lengthy deployments beyond the ones she had already served, thereby making her potentially unavailable to care for her children once again.

Accordingly, the Court found no error in the trial court’s actions.

Miller v. Miller (Tennessee Court of Appeals, Middle Section, July 29, 2011).

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