Posted by: koherston | July 28, 2014

Medical Neglect Leads to Child Custody Change in Nashville: In re Shayla H.

Facts: When Mother and Father divorced, Mother was designated the primary residential parent of Child.

Seven years later, Father petitioned to change custody, alleging that Mother failed to attend to Child’s medical needs and need for speech therapy.

Knoxville divorceThe proof shows Father took Child to the doctor for severe breathing issues. Mother thought these problems were caused by allergies. The doctor disagreed, finding a serious problem with Child’s enlarged adenoids indicated the need for surgery. Mother took no action. Finally, Father had the surgery done while Child was with him. Child also experienced emotional stress as a result of her speech problem which was not addressed until Father put Child in speech therapy.

The trial court found a material change in circumstances in that Mother did not follow up on Child’s medical condition and failed to address the issues — emotional and behavioral — associated with Child’s speech problems. The trial court further found it was in Child’s best interest for Father to be designated the primary residential parent.

Mother appealed.

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

A petition to modify the custody of a child requires the court to conduct a two-step analysis. The threshold question is whether a material change in circumstances has occurred since the entry of the prior custody order. Only if the court finds a material change in circumstances does it proceed to consider whether changing custody is in the child’s best interest.

Decisions involving the custody of a child are among the most important decisions faced by the courts. The party seeking modification of the parenting plan to change the designation of the primary residential parent has the burden of proving a material change in circumstances. Although there are no bright-line rules for determining when such a material change of circumstances 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 commented:

Father noticed [Child] was having difficulty breathing at night and she was having difficulty saying certain sounds. When Mother was made aware of Father’s concerns [], Mother responded she did not have time to deal with these issues and Father would have to take care of what Father perceived to be [Child’s] medical and speech problems….

The record contains notes from [Child’s] physician. These notes indicate Father asked the physician to contact Mother to discuss [Child’s] condition and the physician attempted to reach Mother. The physician stated in his notes he left a message with Mother, asking her to return his call. According to the physician, Mother never returned his call. Father arranged to have the recommended surgery performed on [Child]…. Father testified the surgery was successful and [Child’s] breathing problems at night ceased following the surgery….

The record contains evidence [Child] was difficult to understand in class due to her inability to make certain sounds and, as a result, [Child] did not like to talk in front of her friends or volunteer to speak in class. Father testified he was alarmed at the negative effects on [Child] from not being able to speak properly and [] he decided to set up a speech evaluation in an effort to improve his daughter’s quality of life even if Mother refused to participate in this effort. As a result of the speech therapy she received over several months’ time, the evidence was undisputed [Child] has become better adjusted socially and her speech is much improved….

Despite Mother’s pretension she was not informed about [Child’s] medical condition and her need for surgery before the surgery was scheduled, there is strong evidence to the contrary….

Based upon our review of the record, we find the evidence does not preponderate against the trial court’s findings Father has established a material change of circumstances by a preponderance of the evidence.

The Court went on to agree with the trial court’s judgment that it is in Child’s best interest for Father to be named the primary residential parent.

Accordingly, the trial court’s judgment was affirmed.

In the Matter of Shayla H. (Tennessee Court of Appeals, Middle Section, June 9, 2014).

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


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