Posted by: koherston | September 12, 2013

Joint Custody and Decision-Making Modified in Winchester After Divorce: Smart v. Smart

Facts: Mother and Father, the parents of one child, divorced in 2007. Their parenting plan provided for joint custody whereby each party was awarded equal time with Child. In 2011, Mother petition to modify the parenting plan because she did not believe the joint custody arrangement was working well for Child or the parties.

The evidence showed that for the first three years after the parties were divorced, Mother and Father discussed getting back together, and during this time they did not adhere strictly to the Initial Parenting Plan. Child spent more time with Mother than with Father during this time. Mother testified that Child stayed with her most of the weeks when school was in session and that Child went to Father’s house every other weekend.

Knoxville child custody lawyersWhen Mother told Father that their attempted reconciliation was not going to work out, Father began to insist that they follow the Initial Parenting Plan more closely.

Evidence was introduced that Father had sworn at Mother and called her names in Child’s presence, that Child had asked Mother not to phone her when she was with Father because Father got upset with Child, and that Father had threatened Mother’s father in a public place when Child was present. There was also evidence that Child’s school grades began to suffer when Father began to insist that Child spend every other school week with him.

The trial court found that strict enforcement of the equal parenting schedule after the failed reconciliation resulted in a drastic and negative change in Child’s life. The trial court also found there was frequent disagreement, lack of cooperation and an abject failure to communicate by the parents such that an equal parenting arrangement was not in Child’s best interest because, in part, Child was frequently subjected to dissension and disagreement.

The trial court concluded that Mother should be designated the primary residential parent. Father was awarded 125 days of parenting time. The trial court directed that major decisions were to be made jointly.

Father appealed the modification, while Mother appealed the ruling on joint decision-making.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

When a petition to change a parenting plan is filed, the parent seeking the change has the burden of showing that a material change in circumstances has occurred that makes a change of custody in the child’s best interest. The needs of the child are the most important to consider; the parties’ desires are secondary.

A decision on a request for modification of a parenting arrangement requires a two-step analysis. A party petitioning to change an existing plan must prove both (1) that a material change of circumstances has occurred, and (2) that a change of 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.

Evidence that a parenting plan providing for joint custody or joint primary residential placement is not working for the parties is sufficient to support a finding of material change of circumstances.

After reviewing the evidentiary record, the Court affirmed the trial court’s modification of the parenting plan, writing:

The trial court’s conclusion that a material change of circumstances has occurred since the entry of the Initial Parenting Plan was based on its finding that the parties are unable to work together in a joint custody and joint primary residential arrangement. The evidence does not preponderate against the trial court’s determination of this issue. Our review of the evidence reveals that the change of circumstance occurred after the entry of the order sought to be modified; the change was not known or reasonably anticipated when the order was entered; and the change is one that affects Child’s well-being in a meaningful way. We therefore agree with the trial court’s determination that Mother has satisfied her burden of establishing that a material change of circumstances has occurred….

The evidence presented at the hearing supports the trial court’s comparative fitness analysis and decision to modify the parenting plan and name Mother the primary residential parent. Mother appears more willing to encourage Child to communicate with Father while Child is with Mother and to keep Father informed of Child’s activities in an effort to keep Father involved with Child as much as possible.

Regarding joint decision-making, Mother argued the trial court erred because the parties had so much difficulty communicating and reaching any sort of consensus with regard to Child during the time they were sharing custody equally. The Court agreed and amended the parenting plan to designate Mother as the sole decision-maker for Child’s educational decisions, non-emergency healthcare, religious upbringing, and extracurricular activities.

Thus, the trial court was affirmed in its modification of the parenting plan and reversed in its designation of joint decision-making authority.

Smart v. Smart (Tennessee Court of Appeals, Middle Section, July 31, 2013).

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


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