Facts: Mother and Father are the never-married parents of two children. In 2005, the trial court entered a parenting plan designating Father as the primary residential parent. In 2007, the court modified the parenting schedule so the parties shared equal time.
In 2010, Father petitioned to modify the parenting plan alleging that Mother agreed to care for the children during Father’s vacation to Mexico; that after he arrived in Mexico, Mother informed him that she would not keep the children; that Mother threatened to allow the children to go into state custody if Father did not arrange for their care; and that Father purchased an early return ticket home from Mexico as a result. Mother responded that she made a “good faith effort to care for the children during the Father’s parenting time.”
After the trial, the court made the following findings :
1) Mother deliberately sabotaged Father’s vacation by agreeing to keep the children and then changing her mind after he had left the country.
2) Mother will not co-parent. She is unable to share in activities where Father and Step-mom are present.
3) The comments and actions of Mother are increasingly noticeable to the boys.
4) While Mother accuses Father of being controlling and harassing, the proof did not support this and her emails indicate her own controlling and harassing behavior.
The trial court stated:
It is obvious that Mother loves the boys. It is also obvious that she is not willing to work with others in their lives and cannot put her jealousy and insecurity aside for the betterment of the boys. . . . Children are more perceptive than adults believe them to be and these two boys are literally caught between the two people they love the most.
The trial court examined the factors of Tennessee Code Annotated § 36-6-404(b))and found that
Mother and Father are equal with one very important exception—Mother has repeatedly shown this Court that she is either unwilling or unable to facilitate and encourage a close and continuing parent-child relationship between the children and the other parent, consistent with the best interest of the children.
The trial court concluded that a change in the parenting schedule was in the children’s best interest. Mother’s parenting time was reduced to alternating weekends, alternating holidays, and two weeks in the summer. The trial court further ordered Mother to reimburse Father for his return plane ticket and his attorney’s fees. Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court.
The threshold issue in proceedings to modify a parenting plan is whether a material change in circumstances affecting the child’s best interest has occurred since the adoption of the existing parenting plan. After making the finding that a material change of circumstances has occurred, the court proceeds to make a fresh determination of the best interest of the child.
The trial court first found a material change of circumstances here, writing:
Taken as a whole, the record supports the conclusion that a change of circumstances had occurred since the entry of the[parenting plan]. . . . The conflict between Mother and Father continued to escalate following the [trial] court’s 2007 order and was heightened by the marriage of Father to Stepmother in 2008. The events surrounding the Mexico trip that ultimately caused Father to file for a modification were not isolated but were part of a larger pattern of conduct by Mother; they constitute a material change in circumstance.
As for the children’s best interest, the Court stated:
The evidence, especially the numerous e-mails, fully support the court’s conclusion that Mother is bitter, and we agree that this bitterness has, in turn, prevented Mother from being able to encourage a relationship between the children and Father. As observed by the court, the record reflects the discomfort and anxiety the children experienced as a result of Mother’s behavior. Thus, we affirm the trial court’s holding that the change in the parenting plan is in the best interest of the children.
The Court also affirmed the award to Father of reimbursement for his travel expenses and attorney’s fees.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.