Posted by: koherston | September 27, 2012

Temporary Parenting Arrangement Leads to Change of Custody in Tennessee: Herbert v. Harding

Facts: Mother and Father are the never-married parents of Child. Mother was the primary residential parent. Long after after their separation, Mother asked Father to take care of Child for a few weeks because she was moving out of her apartment. Mother moved in with a member of her church and stayed there for about six months before she was able to secure a more permanent residence. Meanwhile, with Mother’s agreement, Father enrolled Child in football, Boy Scouts, and a local school near his home. Father ultimately filed a petition to change custody, alleging that Mother’s unstable home life and frequent moves adversely affected the child at school and elsewhere, but that the child had shown great improvement under his care. Although Child expressed his preference to reside with Mother, the trial court changed custody to Father. Mother appealed.

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

Mother argued the trial court erred in finding that a material change of circumstances had occurred, explaining that her frequent moves should be considered a normal consequence of the life of a single mother and noting the lack of proof that those moves affected Child in a meaningful way.

A decision on a request for modification of a parenting plan or a change of custody requires a two-step analysis. A party petitioning to change an existing custody order must prove both (1) that a material change of circumstances has occurred and (2) that a change of custody or residential schedule is in the child’s best interest. Only after a threshold finding that a material change of circumstances has occurred is the court permitted to go on to make a fresh determination of the best interest of the child.

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.

After reviewing the record, the Court concluded:

[E]ven if we accepted Mother’s argument, we do not believe that it could have been anticipated that Mother would turn [Child’s] care over to Father for an indefinite period of time. The evidence strongly suggests that Father’s care has affected [Child’s] well-being, but in a positive way. . . .

Mother admitted that she was convicted of shoplifting twice, but we do not know how many times she was not caught or was not charged. What we do know is that her child was aware that she “would steal all the time. . . .”

We are persuaded that the evidence does not preponderate against the trial court’s conclusion that the combination of events it described amounted to a material change of circumstances that affected the child’s well-being in a meaningful way.

Accordingly, the change of custody was affirmed.

Herbert v. Harding (Tennessee Court of Appeals, Middle Section, August 17, 2012).

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


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