Failure to Cooperate with Other Parent Leads to Change of Child Custody After Tennessee Divorce: S.A.M.D. v. J.P.D.

Facts: At the time of divorce, Mother was named the primary residential parent of Child. Father traveled extensively for his work so he was provided with flexible parenting time. About four months after their divorce, Father filed a contempt petition against Mother alleging that she had refused him his court-ordered parenting time unless he gave written confirmation that his girlfriend would not be present, which was not required by the parenting plan. After a hearing, the trial court found Mother guilty of five counts of criminal contempt and sentenced her to 50 days in jail. The trial court suspended Mother’s sentence conditioned upon her continued compliance with the court’s orders. A few months later, Father filed a second contempt petition alleging, inter alia, that Mother failed to cooperate in scheduling his summer parenting time, interfered with his telephone access to Child, etc. Two months later, Father amended his second contempt petition to allege additional incidents in which Mother refused to cooperate in scheduling his parenting time. Father further alleged that Child had excessive tardies at school. After a hearing, the trial court again found Mother in criminal contempt and ordered her to serve three days in jail, which she did. The trial court further concluded that Mother’s conduct constituted a material change in circumstances and that it was in Child’s best interests that Father be designated the primary residential parent. Mother appealed.

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

No decisions in divorce cases require a more delicate touch than those involving child custody and visitation. Courts must strive to devise custody arrangements that promote the development of the children’s relationship with both parents and interfere as little as possible with post-divorce family decision-making. These decisions are not intended to reward or to punish parents and, in fact, the interests of the parents are secondary to those of the children.

The party seeking to change the designation of the primary residential parent has the burden of proving that (1) the child’s circumstances have materially changed in a way that could not have been reasonably foreseen at the time of the original custody decision, and (2) the child’s best interests will be served by changing the existing designation of primary residential parent.

While 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, the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change has occurred after the entry of the order sought to be modified, the change is not one that was known or reasonably anticipated when the order was entered, and the change is one that affects the child’s well-being in a meaningful way. A parent’s change in circumstances may be a material change in circumstances for the purposes of modifying custody if such a change affects the child’s well being.

After reviewing the record, the Court commented as follows regarding the material change of circumstances:

Mother was resistant to Father’s parenting time and used the necessary communications on parenting time arrangements as an opportunity to antagonize and bait Father. . . .

In 2009, the child was required to repeat kindergarten because he had missed 44 days and was tardy 39 days the year before. Mother emphasizes that her efforts in the Fall 2010 semester were greatly improved, as the child was tardy “only” 13 days and had “only” two unexcused absences. Improvement or not, the trial court was entitled to look at, stated plainly, whether Mother was getting the job done. Based on this evidence, she was not. . . .

[T]he trial court found that Mother . . . overall failed to “live[] up to her responsibilities as a parent,” and that this constituted a substantial and material change in circumstances that negatively affected the child’s well-being. After a careful review of the record, we hold that a preponderance of the evidence in the record supports this finding.

Regarding Child’s best interest, the Court stated:

[M]other had a golden opportunity to create a stable, healthy environment to raise [Child] and facilitate parenting time for Father in keeping with his work schedule. Alas, it was not to be. The evidence found credible by the trial court demonstrated that Mother [] did not fulfill a number of her basic parental responsibilities to this child . . . . The trial court found that Mother was not fostering Father’s relationship with the child, but was instead interfering with it and was using the child as a “pawn” to control and antagonize Father. Although this misbehavior may have served Mother’s psychological needs in the wake of the parties’ divorce, it surely did not serve the needs of the parties’ child.

Thus, the trial court was affirmed.

S.A.M.D. v. J.P.D. (Tennessee Court of Appeals, Western Section, October 25, 2012).

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