No Material Change of Circumstances Justifying Change of Custody in Tennessee: In re Annia J.

Facts: Mother and Father are the unmarried parents of Child. After paternity and child support were established, the trial court entered the first order awarding custody to Mother and setting a visitation schedule for Father. A few months later, the case was again before the trial court on a visitation dispute. The parties told the trial court they wished resolve the disputes themselves, whereupon the trial court entered a second order providing that thereafter Father’s visitation “shall be as agreed to by the parties.” Five years later, Father filed a petition to change custody alleging a material change of circumstances since the entry of the first order. First, the parties endured a three-day trial before the Juvenile Court Magistrate, who found no material change of circumstances before dismissing Father’s petition. Father obtained a rehearing before the Juvenile Court Judge, who presided over another three-day trial before finding a material change of circumstances and changing custody to Father. Mother appealed.

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

In order to modify a parenting plan to change the primary residential parent, the trial court must apply a two-part analysis: the court must find that both a material change of circumstances has occurred and a change of custody is in the child’s best interests. Tennessee Code Annotated § 36-6-101(a)(2)(B) defines what constitutes a material change of circumstance in the context of a custody change:

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 in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures 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.

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. There is a strong presumption in favor of the existing order, and the burden of proof is on the party seeking modification to establish that there has been a material change of circumstances. Several factors to consider when making this determination are whether the change occurred after the entry of the order to be modified, whether the asserted change was known or reasonably anticipated at the time of the original order’s entry, and whether the change affects the child’s well-being in a meaningful way. A material change in circumstances must be a change that affects the well-being of the child in a meaningful way. Thus, a change in the circumstances of one or both parents that has not been shown to affect the child does not constitute a material change in circumstances.

In this case, the trial court listed 11 separate findings to support its conclusion that there had been a material change in circumstances, almost all of which the Court of Appeals found were either not supported by the evidence or were not shown to have affected Child in a meaningful way (or at all, in several instances). While the Court of Appeals examines each finding separately in the Opinion, this blog post will address only those trial court findings I found to be worth noting.

Trial Court: Child was present when Mother was a victim was a victim of domestic violence from a former boyfriend. Court of Appeals: The record contains no evidence that Child witnessed or was in any way affected by Mother’s former boyfriend’s abuse.

Trial Court: Mother took Child to work with her on several occasions. Court of Appeals: While one witness testified about two times when Mother brought Child to work with her, there is nothing in the record to suggest that these incidents affected Child in a significant way. “Such isolated incidents of bringing a child to one’s place of work hardly constitute a basis for changing custody.”

Trial Court: Mother had her former boss care for Child while Mother worked, during which time Mother failed to provide any snacks or food for Child. Court of Appeals: One witness testified that, on one occasion when Mother was scheduled to work, Mother told the witness she could not go to work because she had no one to care for Child. The witness offered to take care of Child if Mother brought her to the witness’ home. The witness testified that Child came to her house without any food, so the witness had to feed Child breakfast, lunch, and a snack. Again, there is nothing in the record to indicate that this incident had any material effect on Child. Mother’s lack of child care and failure to send food with Child, while perhaps suggesting a lack of preparedness on that particular day, does not support a finding of a material change in circumstances affecting Child’s well-being in a meaningful way.

Trial court: Mother had five to seven residential moves during the five-year period since the first order was entered. Court of Appeals: The evidence supports a finding that Mother moved five to seven times during the relevant time period. All of these moves were to places within the same county, and Child had attended the same elementary school since the second grade. Child was in fifth grade at the time of the hearing. Once again, there is no evidence that Mother’s residential moves had a negative impact on Child.

Trial court: Child had numerous tardies and unexcused absences from school over a several year period that negatively affected Child’s performance in school. Court of Appeals: The record did not establish excessive unexcused absences. It did establish excessive tardies in second and third grade, which were “somewhat remote in time” considering Child was in fifth grade at the time of trial. Mother testified she changed her work schedule after Child’s third grade year so she could take the Child to school. Records from Child’s fourth grade year showed only two unexcused tardies. There is no evidence that the tardiness continued after Mother changed her work schedule or that the tardiness adversely affected Child’s schooling.

Trial court: Mother interfered with Father’s ability to pay Child’s medical bills in a timely way. Court of Appeals: There is no evidence to even suggest that any interference with Father’s payment of medical bills had any effect on Child.

Trial court: Mother failed to provide Child’s school with a copy of the court order identifying Father’s relationship and rights to Child. Court of Appeals: There is nothing in the record to put the responsibility on Mother to provide the school with information about Father’s rights. This reason does not support the trial court’s analysis.

Trial Court: Mother deliberately interfered with Father’s relationship with Child. Court of Appeals: While this is an important factor, the trial court did not cite any examples of such interference. The record reveals several disagreements attributed to the poorly conceived second visitation order, a.k.a. the “by agreement” visitation order. At times, the parties were operating under different understandings of the relevant court orders, and they often failed to communicate effectively with one another.

The Court concluded:

Having reviewed the 11 reasons cited by the trial court to support its conclusion that there was a material change of circumstances, we find that most of these reasons are not supported by the preponderance of the evidence or reflect the trial court’s failure to apply the correct legal standard (under which only changes having a substantial effect on the well-being of the child are considered material). We, therefore, reverse the trial court’s decision to modify custody.

K.O.’s comment: Remember, a “change” is only a “material change” when there is proof the change affected the child’s well-being in a meaningful way. Without proof of that connection, you could end up wasting six long, expensive days in trial.

In re Annia J. (Tennessee Court of Appeals, Middle Section, January 11, 2012).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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