“Alienation” Contributes to Change of Child Custody in Nashville, TN: Austin v. Gray

Facts: When Mother and Father divorced in 2007, they agreed to a parenting plan that designated Mother as the primary residential parent of their than the 11-year-old son. Father received 130 days of parenting time each year. They shared joint decision-making authority.

After the divorce, Mother and Father’s interactions with one another became increasingly acrimonious. This was due in part to Mother’s overt bitterness against Father, her declining mental and emotional health, and that their child, who has attention deficit hyperactivity disorder, was acting out in an ever increasing fashion.

In 2010, Mother was diagnosed with bipolar disorder.

In 2011, Child, who was then 15 years old, had a falling out with Mother, and moved in with Father with what seemed to be Mother’s blessing. The agreement that Child would live with Father was short-lived; Child voluntarily returned to live with Mother the following month. While Child was residing with Father, Father filed a petition to modify the parenting plan in which he sought to be designated as Child’s primary residential parent with sole decision-making authority.

After a hearing, the trial court ordered a forensic evaluation of Child by a neuropsychologist to provide parenting plan recommendations that were in Child’s best interest. Mother and Father were ordered to cooperate in the evaluation. Father cooperated; however, Mother failed to cooperate and refused to provide access to her psychiatric and medical records. Mother also made bizarre telephone calls to the neuropsychologist and expressed belief that Father was plotting to kill her and booby-trap her vehicle. Shortly thereafter, Mother suffered a mental breakdown and was involuntarily confined for eight days to a psychiatric facility.

After a four-day trial, the trial court acknowledged that Mother’s mental health had notably improved since her hospitalization. Nevertheless, the trial court found that she was still engaging in overt acts of bitterness and anger toward Father that impeded her ability to successfully parent, offer a stable environment, and were a burden on Child. The trial court found there had been material changes that affected the child’s best interest and that it was in Child’s best interest for Father to be the primary residential parent with sole responsibility for making major decisions.

Mother appealed.

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

Mother argued that the evidence at trial was insufficient to establish a material change of circumstances sufficient to change custody.

A petition to change the primary residential parent invokes a two-step analysis, and the petitioner bears the burden of proof in each step. First, the petitioner must prove by a preponderance of the evidence that a material change of circumstances has occurred. Second, the petitioner must show that a change of custody is in the child’s best interests.

Tennessee Code Annotated § 36-6-101(a)(2)(B) identifies what constitutes a material change of circumstances in the context of a petition to change the primary residential parent:

If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Although there are no bright-line rules for determining when such a change has occurred, 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 reasoned:

In its well-reasoned and detailed memorandum opinion, the trial court found that Father proved a host of material changes of circumstance. These included the fact that co-parenting eroded after the divorce with respect to scheduling of parenting time, overall cooperation, and joint decision-making on their son’s behalf. The neuropsychologist found that Mother had “essentially alienated” their son’s affections to Father to a significant degree. This conclusion was supported by evidence that Mother believed Father was not parenting well, was “evil,” and that Father was cruel and verbally abusive to their son; a position which was patently unsubstantiated. The evidence also showed that Mother faulted Father for any problems in her own relationship with their son, and communicated this to the child. This was consistent with the court-appointed evaluator’s finding that Mother was preoccupied with identifying herself as a victim….

The child’s well-being was impacted by his mother’s animosity, mental health issues, and the triangulation between his parents; facts that could not have been reasonably contemplated when the initial parenting plan went into effect. Although Mother has shown improvement in her overall mental health, the facts and circumstances . . . sufficiently establish a material change of circumstances which impacted the child in a meaningful way.

Accordingly, the trial court was affirmed.

Austin v. Gray (Tennessee Court of Appeals, Middle Section, December 18, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial 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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