Change of Child Custody for Excessive Absenteeism Reversed in Dyersburg, Tennessee: Price v. Carter

Tennessee child custodyFactsWhen Mother and Father — the parents of two children — divorced, they agreed to a parenting plan designating Mother as the children’s primary residential parent.

Five years later, Father petitioned to change custody.

Father complained that the children had an excessive number of unexcused absences from school during Mother’s parenting time.

The trial court found the children’s unexcused absences was a material change. It explained:

Being absent from school can cause a child to fall behind academically, and the more absences there are, the more the child falls behind. . . . Even though a child who struggles academically may have better than average grades, that child’s academic success would often be better had the child not been absent.

The trial court then found it was in the children’s best interest to change custody.

Mother appealed.

On AppealThe Court of Appeals reversed the trial court.

The decision to change custody is a two-part test. As a threshold issue, the trial court must determine whether there has been a material change in circumstance since the initial custody determination.

If the court finds a material change in circumstance has occurred, it must proceed to the second step of the analysis and determine whether the modification sought is in the children’s best interest.

Although there are no bright-line rules for determining whether a material change has occurred, Tennessee courts consider:

  • whether the change occurred after the entry of the order to be modified,
  • whether the change was not known or reasonably anticipated when the order was entered, and
  • whether the change affects the child’s well-being in a meaningful way.

Here, the Court of Appeals found the trial court improperly concluded that the absences affected the children’s well-being in a meaningful way:

Although we agree with the trial court that school absences can cause a child to fall behind academically, the evidence presented at trial clearly indicates that such a situation is not present here. . . . [T]he principal testified that the children’s absences were not keeping them from progressing in school or from mastering their subjects. To the contrary, [he] testified that the children are average to above-average students and that they are each “mastering their subjects.” The trial court even admitted as much, finding that “both of the children are doing well academically[.]” [T]he possibility that the children could be “doing even better” academically does not rise to the level of a material change in circumstance warranting a modification of the parenting plan so as to change the designation of the primary residential parent from Mother to Father. . . . The children were excessively absent from and tardy to school for two academic school years. However, during the [most recent] school year, up to the time of the trial, each child had only three unexcused absences and one unexcused incident of tardy. These three absences occurred during the first three days of the school year because the children had not yet returned from East Tennessee. Since returning from East Tennessee, however, the children have not had a single unexcused absence, and Mother testified at trial that she would make sure the children were neither absent nor tardy in the future. Moreover, there was no proof in the record that the children’s academic performance was negatively affected by the earlier absences. . . . [W]e are of the opinion that the children’s problems of absenteeism and tardiness had been largely resolved by the time of the trial . . . .

The trial court’s change of the primary residential parent from Mother to Father was reversed.

K.O.’s Comment: Compare this with the opinion in Groce v. Groce, where the child’s unexcused absences were found to be a material change justifying a change of custody.

Price v. Carter (Tennessee Court of Appeals, Western Section, October 31, 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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