Facts: At the time of divorce in 2003, Mother and Father entered an agreed parenting plan designating Mother as the primary residential parent for Child but providing Father with regularly-scheduled parenting time. Years later,

Mother filed a motion for contempt and petition for modification of the parenting plan. Mother claimed that Father failed to pay child support, failed to spend quality time with the Child, failed to seek medical attention for the Child, allowed the Child to sleep with another child of the opposite sex, allowed members of the opposite sex to stay overnight in the Child’s presence, had been verbally and physically abusive to the Child, was charged with public intoxication and possession of unlawful drug paraphernalia, and pled guilty to possession of drug paraphernalia. Father responded that he could not pay child support because of a material change in circumstance concerning his income, that he spent quality time with the Child, and that he had been placed on judicial diversion for possession of drug paraphernalia. Father filed a counter-petition and motion for contempt, alleging that Mother continued to allow unrelated men to reside in the home with the Child. Mother responded that she had been remarried, that Father failed to exercise his visitation rights, that he was unemployed and unable to support the Child, that he allowed a prostitute to sleep in the same bed with the Child, that he had been convicted of drug offenses, that he was charged with drug offenses committed while the Child was with him, and that he did not have reliable transportation.

After a hearing, the trial court found Father to be credible while Mother’s credibility was “totally destroyed,” there being “no shred of evidence” to support many of Mother’s allegations. The trial court designated Father as the primary residential parent for Child. Mother appealed.

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

When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstance has occurred and (2) that a change in custody is in the child’s best interest. A finding that a material change in circumstance has occurred is a threshold inquiry. If a material change in circumstance has occurred, it must then be determined whether the modification is in the child’s best interest.

There are no bright line rules as to whether a material change in circumstance has occurred, but the Tennessee Supreme Court has directed courts to consider (1) whether the change occurred after the entry of the order sought to be modified; (2) whether the change was known or reasonably anticipated when the order was entered; and (3) whether the change is one that affects the child’s well-being in a meaningful way. Tennessee Code Annotated § 36-6-101(a)(2)(B) specifically provides,

If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change of circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstances may include, but is not limited to, failure to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Mother first argued that Father failed to prove a material change of circumstances. The Court disagreed, stating

Mother prevented Father from exercising his visitation rights. These changes occurred after the entry of the order sought to be modified and were in direct violation of that order. These changes damaged the Child’s relationship with Father and impacted the stability of the Child’s home environment, thereby affecting the Child’s well-being in a meaningful way. Accordingly, we conclude that the trial court did not err in determining that a material change of circumstance occurred, thereby necessitating the further determination of whether modification or a change of custody was in the Child’s best interest.

Mother then argued that a change of custody was not in Child’s best interest. The Court rejected this argument, too.

While removing the Child from Mother would interrupt the continuity of the Child’s care and Mother’s status as the primary caregiver, the evidence presented at trial reflects that the Child has not lived in a stable, satisfactory environment with a stable family unit for a significant period of time.

Mother also refused Father’s visitation rights in direct violation of the court’s order, thereby evidencing her refusal to encourage the Child’s relationship with Father. As reflected by the testimony presented at trial, the Child’s relationship with Father was hindered by Mother’s behavior and her repeated refusal to facilitate visitation.

With all of the above considerations in mind, we conclude that the preponderance of the evidence supports the trial court’s naming of Father as the primary residential parent as being in the best interest of the Child. Accordingly, we affirm the decision of the trial court but further advise the parties that failure to promote and encourage a close relationship between the Child and the other parent may result in the custody determination being reviewed in the future.

It is notable that the Court specifically referenced how the failure to promote and encourage a close relationship between the child and the other parent can lead to a change of custody. While that comes as no surprise to readers of this blog, this case should eliminate any doubts.

Finch v. Hayes (Tennessee Court of Appeals, Eastern Section, October 20, 2011).

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