Failure to File Proposed Parenting Plan Not Fatal to Child-Custody Modification in Tennessee: Freeman v. Freeman

FactsMother and Father divorced in 2013, and agreed to a parenting plan that limited Father to supervised visitation for two hours every Saturday.

downloadThe following year, Father sought to modify his parenting time and attached a proposed parenting plan to his petition. The trial court removed the supervision requirement and expanded the duration of Father’s parenting time.

The next year, upon Father’s petition, his parenting time was expanded to overnight visitation.

The year after that, Father again petitioned to increase his parenting time, and the trial court did so. Mother appealed.

On AppealThe Court of Appeals affirmed the trial court.

Mother argued the trial court lacked subject-matter jurisdiction because Father did not attach a proposed parenting plan to his last motion to modify the parenting plan.

Tennessee Code Annotated § 36-6-405(a) requires that an action to modify a parenting plan, “a proposed parenting plan shall be filed and served with the petition for modification.”

Tennessee courts generally have exclusive and continuing subject-matter jurisdiction over postdivorce child-custody disputes. Courts may not, however, modify parenting plans on their own without a request from an appropriate party.

Once a child-custody matter is closed, there are two ways a parent can revive it. First, the parent may file a petition for modification along with a proposed parenting plan as required by Tennessee Code Annotated § 36-6-405(a). Second, a parent may file a Rule 60 motion.

Here, the Court held that Father’s failure to attach a new proposed parenting plan did not render ineffective his attempt to invoke the court’s jurisdiction:

A party’s failure to provide a proposed parenting plan pursuant to Tennessee Code Annotated § 36-6-405 may contribute to the overall success or failure of a petition to modify the permanent parenting plan, but the trial court is not required to dismiss the parent’s petition for noncompliance.

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Courts may not modify permanent parenting plans sua sponte; when a final judgment has been entered in a domestic relations case, a parent must invoke the trial court’s jurisdiction pursuant to Tennessee Code Annotated § 36-6-405(a) or Tennessee Rule of Civil Procedure 60 in order to modify a permanent parenting plan. We merely hold that a parent’s partial noncompliance with Tennessee Code Annotated § 36-6-405(a) — by failing to attach a proposed parenting plan to a petition to modify custody — does not nullify the parent’s attempt to invoke the trial court’s jurisdiction.

The trial court’s judgment was affirmed.

Freeman v. Freeman (Tennessee Court of Appeals, Eastern Section, December 14, 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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