Material Change Not Required to Modify Interim Parenting Plan in Memphis, Tennessee: In re Samuel P.

Facts: Mother and Father are the never-married parents of Child. They have continuously battled over parenting time and related issues since Child’s birth.

After one year of litigation, they agreed to a parenting plan at mediation. The schedule gradually increased Father’s parenting time over the next two years until they shared equal time. The mediated parenting plan did not resolve child support, however.

Neither party sought court approval of the mediated parenting plan for nearly a year. When Father finally requested court approval, Mother moved to modify the mediated — but not yet court-approved — parenting plan. She alleged a lot of problems, but the gist is that their child has special needs resulting from cerebral palsy, and Father refused to engage in joint decision-making.

The trial court approved their mediated parenting plan.

At trial, Father was found in civil contempt for numerous violations of the parenting plan. It also found that Father had intentionally undermined Mother’s ability to make decisions about Child’s daily care, medical care, day care, education, and upbringing. The trial court found that when Mother made any request regarding Child, “Father went out of his way to do the opposite.” The court found that Father had obstructed and caused significant delay in Child’s receipt of physical and developmental therapy for illogical reasons, engaging in “gamesmanship and controlling behavior.”

The trial court modified the mediated parenting plan to reduce Father’s parenting time somewhat and to give Mother sole decision-making authority.

Father appealed.

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

Father argued the trial court erred in modifying the mediated parenting plan because, according to Father, there was no material change of circumstance to support modification.

To modify a parenting plan that has been incorporated into a final order, the petitioner must demonstrate a material change of circumstance affecting the child’s best interest.

Tennessee final orderThis standard for modifying a parenting plan does not apply when there is no final custody order and the parties are only operating under a temporary order.

Temporary custody orders do not have the same res judicata protections as a final order. Thus, it is unnecessary to show a material change of circumstance where the initial custody order the parties sought to modify did not become final. As long as the order has not become final, the trial court may modify it either on its own motion or at the request of one party. It may also change its mind after reconsidering the proof and the law.

The Court held that because the mediated parenting plan had not yet become a final order, it could be modified without finding a material change:

Because of the unique circumstances of this case, the parties’ mediated parenting plan (which failed to address child support) was not actually approved by the court for over a year. Even when it was ultimately approved by the court [], it was not incorporated into a final order or decree — Mother’s petition to modify had been filed before the entry of the parenting plan and remained pending, and the issue of child support was unresolved. In effect, then, the trial court was considering a petition to modify when no final order on custody or parenting issues existed. Without a final order entitled to res judicata effect, it was not necessary for Mother to show a material change of circumstance.

The trial court’s judgment was affirmed.

K.O.’s Comment: Curiously, Father raised no issue regarding the best-interest analysis on appeal.

In re Samuel P. (Tennessee Court of Appeals, Western Section, February 23, 2018).

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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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