Change of Child Custody Reversed in Tennessee: Tomlin v. Leamon

Facts: Mother and Father are the divorced parents of two children. Mother was the primary residential parent. In a post-divorce proceeding, Father sought to change custody such that he would be the children’s primary residential parent. Father argued that a change in his work schedule allowed him to spend more time with the children. After the trial, the trial court found “[t]here’s no doubt there’s been a material change of circumstance insofar as [Father’s] work schedule changing and [Mother’s] living circumstances changing.” (Mother had moved from her parents’ home into a residence with her new husband.) The trial court named Father the primary residential parent. Mother appealed.

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

Mother argued the trial court erred in changing the primary residential parent because there was no material change of circumstances. The Court of Appeals agreed.

In Tennessee, existing child custody arrangements are favored because children thrive in stable environments. A child custody decision, once made and implemented, is considered res judicata upon the facts in existence or those which were reasonably foreseeable when the decision was made. However, Tennessee courts may modify an award of child custody when both a material change of circumstances has occurred and a change of custody is in the child’s best interests.

Thus, the threshold issue is whether a material change in circumstances has occurred after the initial custody determination. While there are no firm rules for determining when a child’s circumstances have changed sufficiently to warrant a change of custody, the following three factors are generally used to determine whether a material change in circumstances has occurred: (1) the change occurred after the entry of the order sought to be modified, (2) the change was not known or reasonably anticipated when the order was entered, and (3) and the change affects the child’s well-being in a meaningful way.

If a material change in circumstances is proven, it must then be determined whether the modification is in the child’s best interests. If no material change in circumstances is proven, the trial court must deny the request for a change of child custody.

After reviewing the record, the Court found:

The Children’s preference testimony was on the whole rather inconclusive and not dispositive. Father’s change in work hours hardly can be deemed an occurrence so meaningfully consequential to the Children’s well-being as to warrant a change in primary residential parent. . . . We place much weight on continuity and stability in these matters. As Mother argues in her brief, “there was simply no basis to disrupt the continuity of [Older Child’s] almost 11 years of placement with Mother and [Younger Child’s] 6 years with Mother.” Indeed, the record indicates that the Children were doing well under the [existing parenting plan].

In its ruling, the Trial Court also emphasized, as a material change of circumstances, Mother’s move from her parents’ home to a new residence with her husband. While certainly a change, it is not at all apparent from the record that this move has meaningfully impacted the Children’s lives in such a way as to represent a material change of circumstances for purposes of our analysis. . . .

We find nothing in the record to justify so drastic a move as changing the primary residential parent. The evidence in the record simply preponderates against any finding that the change in Father’s work schedule and Mother and her husband moving to a new home is a change that affects the Children’s well-being in a meaningful way. . . .

The evidence in the record on appeal preponderates against the Trial Court’s finding that a material change of circumstances justified changing the primary residential parent from Mother to Father. As we find there was no material chance of circumstances, we forego any best interests analysis. We reverse the judgment of the Trial Court as to this issue.

We, however, are cognizant of Father’s work schedule change and the benefit that could be gained by the Children were they to spend more time with him. We agree with Father that it would be in the Children’s best interests for them to have more time with Father. Therefore, we remand this cause to the Trial Court for the adoption of a permanent parenting plan that suitably acknowledges Father’s work schedule change and allows the Children to have more time with Father while retaining Mother as the primary residential parent.

In other words, the Court found a material change of circumstances and determined it sufficient to change the residential sharing schedule but insufficient to change custody. Curiously, the Court’s opinion makes no mention of the fact that there are two types of material changes, one that establishes a high burden necessary for a change of child custody (Tennessee Code Annotated § 36-6-101(a)(2)(B)) and another that establishes a low burden for changing the residential schedule (Tennessee Code Annotated § 36-6-101(a)(2)(B)). The failure to reference this pivotal distinction seems odd in light of the Court’s ruling.

Tomlin v. Leamon (Tennessee Court of Appeals, Eastern Section, February 23, 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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