Facts: Mother gave birth to Child. At age four, Mother petitioned the court to establish Father’s paternity of Child. Father filed a petition to establish a parenting plan allowing him reasonable visitation with Child. After DNA testing confirmed Father’s paternity, the trial court set Father’s child support and established a standard co-parenting schedule. About a year-and-a-half later, Father filed a petition to modify the parenting plan to name him the primary residential parent. Father alleged Mother relocated out of state without properly notifying him or complying with a separate court order requiring both parents to notify the court clerk of any change in their contact information, all of which Father argued interfered with his visitation with Child. After a hearing, the trial court found as follows:
Father has a stable and safe home environment. Since the Court Order of December 2009 that gave custody to Father, he has enrolled the minor child in a school which is in very close proximity to his residence. Father is married and has lived at his current residence for approximately five (5) to six (6) years. Accordingly custody of the above-named child is hereby granted to Father.
The trial court granted Father’s petition and named him the primary residential parent for Child. Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court.
Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.
If the petitioner proves a material change in circumstances, then the court must determine whether a change in custody or visitation is in the best interest of the child. This determination requires consideration of a number of factors, including those set forth at Tennessee Code Annotated Section § 36-6-106(a) to make an initial custody determination and those set forth at Tennessee Code Annotated Section § 36-6-404(b) to fashion a residential schedule.
Mother argued her relocation to Ohio was not a material change of circumstances because the relocation did not affect Child or her relationship with Father. The Court made quick work of that argument:
Mother’s failure to follow both the relocation statute and the court’s order regarding updating her contact information support the trial court’s finding that Mother had an unwillingness “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). Mother failed to adequately apprise Father of the child’s location and give him the appropriate information to maintain contact with his daughter. In doing so, Mother deprived the child of some of Father’s court-ordered visitation and his right to contact the child. Accordingly, we affirm the trial court’s determination that a material change in circumstances occurred in this case.
Mother then argued the trial court failed to conduct a best interest analysis as required by Tennessee Code Annotated § 36-6-106(a). The Court observed that while the trial court concluded the change of custody was in Child’s best interest, it failed to articulate its analysis of any statutory factors.
From our review of the order, we cannot conclude that the judge made a best interest analysis in this case. Specifically, the judge considered only the stability of Father’s household and Mother’s interference with visitation. The judge did not consider other relevant factors, such as Father’s child support arrearage or the fact that Mother had been the child’s primary caregiver all her life prior to the change in custody.
To prevent further delay, the Court of Appeals went ahead and performed its own analysis to determine if modification of custody is in the child’s best interest. After going through each statutory factor, the Court concluded:
Mother’s actions evince an unwillingness to facilitate a close relationship between Father and the child, especially considering her lack of credibility with the trial court. Father also has a stable home where the child has been living for nearly the last two years. Although Mother had been the child’s primary care giver during the child’s life prior to Father’s petition, that fact alone is not enough to convince this Court that the trial court erred in naming Father primary residential parent.
This case is yet another example where a parent’s interference with the the other parent’s relationship with the child led to a change of custody.
Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.