Change from Equal Parenting Time to Unequal Time Affirmed in Johnson City: In re Jesslyn C.

Facts: Mother and Father are the never-married parents of Child. Their agreed parenting plan provided for equal parenting time via an alternating weekly schedule. Mother was designated the primary residential parent.

Three years later, Father sought to modify the parenting plan such that he would be named the primary residential parent with sole decision-making authority. He alleged that, among other things, Mother had changed residences multiple times, had caused several judgments to be entered against her for unpaid rent, and was dating a convicted felon.

Mother also sought to modify the parenting plan by reducing Father’s parenting time to alternating weekends and two non-consecutive weeks in the summer. She alleged that, among other things, Father harassed her and exhibited verbally abusive behavior and had warrants issued against him for unpaid rent and driving on a revoked license.

After a trial, the trial court found that although there were material changes in circumstance affecting Child, such as the parties’ difficulty cooperating while Child attended daycare and Child’s maturation from 2 to 5 years old, these changes did not warrant changing the primary residential parent from Mother to Father but did warrant changing the parenting schedule. The trial court found it was in Child’s best interest to reduce Father’s day-to-day parenting time to alternating weekends when school was in session and inverting the schedule during the summer break so Mother’s parenting time would occur on alternating weekends.

Father appealed.

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

In any proceeding requiring a trial court to make a child custody determination regarding a minor child, the court must make that determination on the basis of the best interest of the child. Upon a petition to modify custody from one parent to the other parent, the threshold issue is whether a material change in circumstances has occurred after the initial custody determination. Upon a trial court’s finding that a material change in circumstance has occurred, it must then be determined whether the modification is in the child’s best interests.

The standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing custody is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(B). This is considered a more stringent standard.

In comparison, the standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing the parenting schedule is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(C). This is considered a very low threshold.

In this case, Father argued Mother’s cohabitation with another man — “M.C.” — constituted a material change in circumstance sufficient to change custody. Father noted in particular that Mother’s paramour is a convicted felon who had served jail sentences for an arson conviction and violation of an order of protection obtained by his ex-wife.

After reviewing the record, the Court commented:

At trial, Mother acknowledged that M.C. had served jail sentences in the past for an arson conviction and violation of an order of protection obtained by his ex-wife in 2010. She asserted, however, that M.C. was a “good man” who was “great” with her children and had never threatened harm to her or her children. Father did not present any testimony or evidence to indicate that M.C. had ever endangered the Child or anyone living with Mother. Although at the close of trial, the court expressed concern regarding the presence of M.C. in Mother’s home, the court found that Father had not demonstrated any risk of harm to the Child due to M.C.’s presence….

We conclude that the evidence does not preponderate against the trial court’s finding that although a material change in circumstance warranting a modification of the residential co-parenting schedule had occurred, it did not rise to the level required for a change in the primary residential parent.

After also finding no error in the trial court’s assessment of Child’s best interest, the trial court’s judgment was affirmed.

K.O.’s Comment: One of the requirements for a material change in circumstance is that the change affect the child’s well-being in a meaningful way. This is where Father’s argument was found lacking. It’s not enough to have “dirt” on the opposing party. This case reminds us there must be a causal connection between the “dirt” and some resulting impact to the child.

In re Jesslyn C. (Tennessee Court of Appeals, Eastern Section, March 31, 2015).

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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