No Material Change in Postdivorce Child Custody Dispute in Hohenwald, TN: Kelly v. Kelly

Facts: When Mother and Father divorced, they entered an agreed parenting plan giving Mother 285 days of parenting time and 80 days for Father.

Ten months later, Father petitioned to change custody. He alleged Mother was failing to properly parent and supervise their daughter. Father specifically alleged that Mother failed to supervised their daughter with respect to the daughter’s schoolwork and use of social media.

knoxville divorceAt trial, Father shared with the court a number of his daughter’s social media posts, conversations, and “likes,” which Father deemed inappropriate for a 14-year-old child. Father admitted he was unaware of any measures taken by Mother to address the concerns. He also noted he did not make any suggestions to Mother about how the issue should be handled. Father also testified that their daughter was doing poorly in school. He proposed holding their daughter out of dance until her grades improved, but Mother was not responsive to that proposal.

Father rested his case at the conclusion of his testimony. Mother moved to dismiss, arguing that Father failed to prove a material change in circumstances.

The trial court found Father’s proof was inadequate to carry the burden of showing a material change in circumstance and, therefore, dismissed his petition.

Father appealed.

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

Courts apply a two-step analysis to requests for modification of the primary residential parent or the parenting schedule. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred will the court determine whether modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors the court’s consider include:

  • whether the change occurred after the entry of the order sought to be modified;
  • whether the change was known or reasonably anticipated when the order was entered; and
  • whether the change affects the child’s well-being in a meaningful way.

A change in circumstance regarding a parenting schedule is different from a change in circumstance regarding custody. The threshold for establishing a material change where the issue before the court is a modification of the parenting schedule is much lower.

The Court concluded Father failed to show a material change for either type of modification:

Father failed to meet his burden of proving that any allegedly material change occurred that affected the well-being of the parties’ daughter. While Father testified, apparently credibly, that he was concerned about his daughter’s use of social media and her academic performance, he failed to present evidence of any kind that Mother had failed to supervise the daughter in those areas.

Although the threshold is much lower when determining whether a material change in circumstance has occurred with respect to a modification in visitation, Father similarly failed to prove by a preponderance of the evidence that such a change had occurred with respect to this issue. As noted above, Father presented credible concerns regarding his daughter’s social media behavior and academic performance but he failed to prove any material change in circumstance warranting modification of the parenting schedule. Because Father failed to prove any material change, we do not consider whether modification would be in the daughter’s best interest. Accordingly, we affirm the decision of the trial court that Father failed to meet his burden to prove that a material change in circumstance occurred with respect to both the issue of primary residential parent and of visitation.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) Parents sometimes forget that they must establish a causal connection between the change and a meaningful impact on the child. The impact can be positive or negative, but a causal connection must be shown. A good example of this is Galaway v. Galaway, where the Court explained that not every change in a child’s life or the life of her parents rises to the level of a material change warranting a change in the parenting plan.

(2) I love it when the Court explains modern life in the stiffest way possible. Here, the Court explains what a “like” is:

A social media user’s “like” of social media content, which generally occurs by tapping or clicking a specified button on the user interface, generally denotes that the user enjoyed or identified with said content. In many cases, when a user “likes” a piece of content, that “like” is made public to a varying degree based on the users privacy settings.

knoxville divorce

Kelly v. Kelly (Tennessee Court of Appeals, Middle Section, October 19, 2016).

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