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Facts: Father and Mother are the never-married parents of Child. They entered an agreed parenting plan designating Father as the primary residential parent and giving Mother 182 days of parenting time.
Shortly after that, Father withheld Child from Mother after learning of domestic violence in Mother’s home. Mother responded with a motion for contempt, and Father countered with an emergency motion for custody. After a hearing, Mother’s parenting time was limited to supervised visitation with a prohibition on contact between Child and Mother’s new husband, Mr. Bryan.
Father petitioned to change the parenting plan. The hearing revealed several incidents where Mother’s significant other—Mr. Bryan—became physically violent with Mother and Mr. Bryan’s minor daughter. Mr. Bryan was arrested, but the charge was dismissed after Mother declined to prosecute. Two days later, Mr. Bryan assaulted Mother again and told the police that he and Mother were using methamphetamine.
After Mr. Bryan was later charged with aggravated burglary and aggravated assault, he fled Tennessee and was apprehended in Alabama.
Mother returned to Mr. Bryan, which prompted Father to withhold Child from Mother to protect Child.
Mother testified that she and Mr. Bryan no longer fight and regularly attend church together.
Father testified that Mother said Mr. Bryan threatened to kill her, and other witnesses, including Mother’s mother, corroborated this.
Mother testified she was aware of Mr. Bryan’s criminal history and a felony drug charge. At the emergency hearing, Mother testified she cut off contact with Mr. Bryan and was living separately when the truth was she married him two weeks earlier and was living in his home.
Despite his acts of violence and criminality, Mother testified she saw nothing wrong with having Mr. Bryan around Child. She also testified she would not end her relationship with Mr. Bryan even if the trial court found he posed a risk of harm to Child. Mother said she did not perceive a risk of danger because she and Mr. Bryan had changed since these incidents.
The trial court dismissed Mother’s motion for contempt and granted Father’s request to change the parenting plan. The trial court found that Mother perjured herself regarding her relationship with Mr. Bryan and her living arrangements at the time of the emergency hearing. The trial court also found Mr. Bryan has a history of drug use, domestic violence, pending charges for violent felonies, and several previous arrests and convictions. The trial court also found that Mr. Bryan had recently engaged in domestic violence and drug use.
As for Father, the trial court found Father tried to make arrangements to let Mother safely exercise parenting time with Child, including arranging for Mother to visit, live separately and away from Mr. Bryan, and helping Mother with transportation. Despite these efforts, Mother repeatedly returned to Mr. Bryan.
The trial court concluded Mother’s living arrangements “are unsafe for the child.” Mother’s parenting time was reduced to 59 days, which must be supervised.
Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court.
Before a Tennessee court can change a parenting plan, it must determine if a material change occurred. If it has, then it must determine whether the proposed change is in the child’s best interest.
A material change of circumstances does not require showing a potential risk of harm to the child. It can include a change in the home environment from the impact of the actions of a parent’s significant other.
First, Mother argued there was no material change of circumstances because Child had not yet suffered any abuse. The Court disagreed:
The threshold for a material change of circumstances is not, however, that a child has suffered abuse. Mother also argues that Father was aware of Mr. Bryan and Mother’s relationship prior to entry of the Parenting Plan, and, therefore, Father cannot successfully argue that Mr. Bryan’s presence constituted a material change. Although Mother and Mr. Bryan were dating and Father was aware of some of Mr. Bryan’s criminal history, it was not until after entry of the Parenting Plan that Father was informed of Mr. Bryan’s full criminal record. Assuming for purposes of argument that Mother is correct that Father’s lack of knowledge and subsequent discovery of this information cannot be a basis for a material change of circumstance, there are, nevertheless, multiple significant occurrences after entry of the Parenting Plan that provide a basis for a finding of a material change of circumstances. Notably, Mr. Bryant engaged in a variety of criminal behavior including acts of domestic violence and other forms of criminal conduct, has used illegal drugs, and made threats against Mother and her family after approval of the plan. Additionally, Mother’s attitude in response to such behavior is a subsequent development that raises serious concerns about the safety of [Child] in this environment….
Ultimately, the unsafe environment created both by Mr. Bryan’s behavior and Mother’s attitude toward the danger created thereby amounted to a material change of circumstances.
Mother then argued the trial court baselessly concluded that modification was in Child’s best interest. The Court made quick work of this argument:
We disagree. The [trial court] made findings indicating its concern relating to “Mr. Bryan[‘s] … history of domestic violence and drug use,” Mr. Bryan’s criminal history, and Mother’s indifference toward the “living arrangements that are unsafe for the child.” The record supports these findings.
* * * * *
The trial court also found that Mr. Bryant engaged in recent acts of domestic violence and drug use. There were also extreme threats made against Mother and her family. These circumstances, and Mother’s response thereto, reveal an unsafe environment created by Mr. Bryan’s presence. The trial court concluded, and the record supports, Mr. Bryan’s behavior and Mother’s attitude in response thereto created an environment where modification of the Parenting Plan is in [Child’s] best interest.
The Court affirmed the trial court’s judgment.
Source: Leath v. Flowers (Tennessee Court of Appeals, Western Section, April 22, 2025).
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