Failure to Change Custody Reversed in Marion County, Tennessee: Wilson v. Phillips

Facts:  Mother and Father are the parents of three children. When they divorced in 2007, Father received primary custody of the children, and Mother had 125 days of parenting time each year.

In 2016, Mother petitioned to change custody. Some of the material changes she alleged were:

  • Both parents’ work schedules changed, and the children spend much of their time in the care of Stepmother;
  • Father does not properly address the children’s medical needs;
  • Father and Stepmother frequently fight with each other in front of the children; and
  • Father and Stepmother are mentally and physically abusive to the children, including slapping, choking, jabbing in the throat, unjustified and excessive spanking, denigrating the children, making derogatory remarks about Mother to the children, and using profanity to refer to the children’s extended family.
wilson phillips
How many of you get this reference?

The opinion discusses the proof in great detail. Suffice it to say that Mother presented credible evidence to support her accusations. In addition, the oldest child testified and expressed her preference to live with Mother.

The trial court found there had been a material change in circumstances but concluded it was in the children’s best interest for Father to remain the primary residential parent.

Mother appealed.

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

Determining whether to change the primary residential parent requires a two-step analysis. The first step is to determine whether a material change of circumstance has occurred since the court’s previous custody order. If the trial court finds there has been a material change in circumstances, the court must determine whether it is in the child’s best interest to modify the parenting plan as requested.

Where the issue before the court is a modification of the parenting schedule only, the threshold for determining whether there has been a material change of circumstances is much lower as compared to the threshold for modification of the primary residential parent. To modify the residential parenting schedule, a showing that the current schedule is not workable for the parties can be enough to satisfy the material change of circumstances standard.

Once the trial court finds there has been a material change in circumstances, it must then determine whether it is in the children’s best interest to modify the parenting plan by considering the factors in Tennessee Code Annotated § 36-6-106(a).

After reviewing the evidence, the Court determined the trial court abused its discretion in failing to change custody:

The weight of the evidence points to a pattern of negative statements by Father and Stepmother concerning mother. . . .

* * * * *

Contrary to the trial court’s characterization of the record, we find that the evidence supports a conclusion that Father and Stepmother show a propensity for excluding Mother from the parenting role in violation of the parenting plan and speaking about her to the children in a negative way. This factor weighs heavily against Father.

* * * * *

[W]e conclude that the evidence preponderates against the trial court’s finding that Father should remain the primary residential parent. The important factor of continuity favors Father, but the other key factors at play here are weighed in favor of Mother — namely, the changes in the parties’ employment schedules, the children’s stressful relationship with Stepmother and their positive relationship with Stepfather, the desire of the oldest child to live with Mother, Father’s failure to attend to the children’s dental, vision, and medical needs, Father’s failure to comply with the current parenting plan, and the Father’s and Stepmother’s lack of willingness to facilitate and encourage Mother’s relationship with the children.

Thus, the trial court’s judgment is reversed, and Mother is now the primary residential parent of the children. Mother was also awarded her attorney’s fees at trial and on appeal under Tennessee Code Annotated § 36-5-103(c).

K.O.’s Comment: (1) Considering the wide discretion afforded trial courts in best-interest determinations, this outcome is rare. I see it only in the most obvious of cases. This is one such case. How the trial court left these children in Father’s custody is beyond me.

(2) To my friends on the Court of Appeals, can we please have an informal page limit on opinions? Asking for a friend. Lawyers are subject to strict page limits in briefs. There is no need for lengthy block quotes from all the cited statutes. There is no need to recount the minute details of each witness’s testimony. All the points of this 37-page opinion could have been covered in 8-10 pages. /rant over

Wilson v. Phillips (Tennessee Court of Appeals, Middle Section, November 15, 2017).

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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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