Articles Posted in Child Custody

You are entitled to due process of law in matters concerning your right to parent your children.  This generally means that before you can be deprived of your parenting rights, you must be allowed a meaningful opportunity to object.  In a recent case involving a Tennessee child custody dispute, the Court of Appeals of Tennessee reviewed whether a father was unfairly restricted by a Permanent Parenting Plan ordered by the trial court without any evidentiary hearing.child and parent

The parties in the case had two children born during their marriage and were in the process of divorce.  A hearing was held before the trial court on the matter of the Final Decree of Divorce and the Permanent Parenting Plan, during which it was revealed that the father was in a relationship with a man.  At the conclusion of the hearing, the trial court modified the Final Decree of Divorce with handwritten injunctions, some of which applied only to the father.  Specifically, the restrictions prohibited the father from having dating partners around the children at any time and also prohibited homosexual activity around the children.

On appeal, the issue for the court was whether the father was deprived of due process by not being afforded a meaningful evidentiary hearing before substantive changes were made to the agreed-upon Final Decree of Divorce and Permanent Parenting Plan.  The court concluded that the injunctions restrained the father’s liberty under both the U.S. Constitution and the Tennessee Constitution, which thus provide that the government may not deprive an individual of life, liberty, or property without due process of law.  The court also explained that due process requires appropriate notice in order to afford the litigant the opportunity to be prepared to present evidence in addition to the opportunity for a meaningful hearing.  Accordingly, the court ruled that the parties should have been provided notice before imposing generalized “paramour” and “lifestyle” restrictions so that they could be prepared to present evidence on the issue.

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It is not unusual for parents to have disagreements regarding their children’s upbringing after a Tennessee divorce.  If there are significant decisions that cannot be resolved, the parties may have to settle their dispute in court.  In an August 2, 2017 opinion, the Court of Appeals of Tennessee reviewed a case involving a post-divorce modification of a parenting plan.  The mother filed the petition, alleging that the father had preemptively refused to pay their oldest child’s private school tuition and failed to pay for the children’s extracurricular expenses.graduation

The parties in the case were the parents of two daughters at the time of their divorce in 2007.  The permanent parenting plan entered into at the time of the divorce stated that the parties would share joint decision-making regarding the children’s educational decisions, extracurricular activities, and religious upbringing.  It also stated that the parties would each pay half of the cost of all private school tuition and any other school or extracurricular expenses incurred on behalf of the children, upon which expenses they had mutually agreed in advance.

The mother proposed a modification that would require the private school tuition to be paid pro rata to the income of each party.  She also requested that the court designate her as the sole decision-maker for the children.  The father contested the change and further averred that the mother had enrolled the older child in a private school over his objection.  The mother admitted that she had enrolled the older child at the private high school without the father’s agreement, but she argued that the father had unreasonably withheld approval and that it was in the child’s best interest to attend the school.

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Issues concerning children and other personal matters are often disputed in divorce cases.  In a June 15, 2017 case from the Court of Appeals of Tennessee, a father argued that the lower court erred in not awarding him equal parenting time with the spouses’ three children and in not granting a fault-based divorce due to the mother’s infidelity.  The spouses had filed for divorce in 2015, each alleging inappropriate marital conduct on the part of the other.  The trial court’s order granted a divorce without finding fault, designated the mother as the primary residential parent, and awarded visitation rights to the father pursuant to a schedule.child's hands

On appeal, the father contended that the trial court should have awarded him more time with the children.  The father cited Tennessee’s parental custody statute, which provides that, when taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the child’s life, and that is consistent with certain factors, including the location of the residences of the parents, the child’s need for stability, and other relevant considerations.

The appeals court noted, however, that the rule does not mandate that each parent spend equal time with the child when such a schedule would not serve the child’s best interest.  The court also explained that the trial court’s analysis is guided by a number of other factors, including which parent served as the primary caregiver of the children, which parent is more likely to foster a relationship with the other parent, the stability and continuity offered by each parent, and the preferences of older children.  In the case, the mother worked from home, while the father worked outside the home and was unavailable during much of the week.  The court ruled that, under these circumstances, the trial court was well within its discretion to create a parenting plan that provided the mother with the majority of parenting time during the work week and alternating weekends.

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A modification of a child custody or visitation schedule typically requires approval by a court if the parents don’t agree to the terms.  In a March 29, 2017 case, the Court of Appeals of Tennessee reviewed a matter involving the modification of an agreed parenting plan under which the child’s mother was the primary residential parent.  After the father obtained an injunction to prevent the mother from homeschooling the child, the mother sought to obtain sole decision-making authority.  The father responded by filing a petition to be named the primary residential parent and sole decision-maker.  The juvenile court granted the father’s request, limited the mother’s visitation, and enjoined her from using social media and making disparaging remarks about the father.  The mother brought the subsequent appeal.children

In Tennessee, the threshold issue for the court in considering a petition to modify a parenting arrangement is whether a material change in circumstances has occurred.  If the court finds that a material change in circumstances does exist, it will go on to consider whether a modification is in the child’s best interest.  When determining the child’s best interest, the court is required to consider a non-exclusive list of factors enumerated by law.

In the case at issue, the appeals court concluded that several of the statutory factors favored the designation of the father as the primary residential parent.  Reviewing the evidence, the court pointed to the mother’s unwillingness to cooperate with the father regarding educational decisions and her history of disregarding orders of the court.  The court also observed that the mother’s chronic fatigue episodes often left her unable to get out of bed, and her mental instability was evidenced by the condition of her home, which the Tennessee Department of Children’s Services found to be inappropriate for raising a child.

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After a divorce, there are many decisions to consider regarding the couple’s children and financial obligations.  In a March 1, 2017 decision, the Court of Appeals of Tennessee considered an appeal of a trial court order concerning the father’s obligation to pay private school tuition and the mother’s imputed income for the purpose of calculating child support.graduation-1311237-639x852-225x300

In the case, the Final Decree of Divorce entered by the trial court incorporated the parties’ permanent parenting plan, wherein the father agreed to pay for his children’s private school education through high school.  In settling the amount of child support, the court also found that the mother was voluntarily unemployed and imputed to her an income of $72,000.  In March 2015, the father filed a petition seeking to modify his obligation to pay the tuition.  The lower court denied this request, holding that the father’s tuition obligations are not subject to modification.  The trial court also denied the mother’s request to modify her support obligation.

While Tennessee courts do not have authority to order a parent to pay the undergraduate or post-secondary tuition of a child who is at the age of majority, if a parent enters into such an agreement it will be enforced by the Tennessee courts.  This type of agreement retains its contractual nature when included in the final decree of divorce, and cannot be modified by the court.  However, tuition for private grade school or high school is considered an extraordinary educational expense that may, in some circumstances, be a part of a parent’s duty to support his or her child.  Unlike an agreement to pay college tuition, a parent’s agreement to pay for private elementary or secondary education may be subject to modification if it is incorporated into the final decree of divorce.

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In Tennessee, courts recognize that a reduction in parenting time following a divorce can affect the well-being of the child as well as the parent’s rights.  Accordingly, any motion to modify parenting time is reviewed pursuant to specific legal standards.  In a February 23, 2017 opinion, the Court of Appeals of Tennessee scrutinized a lower court’s order to reduce the father’s parenting time, ultimately reversing the decision.father and son

The parties had divorced in 2008.  Prior to the entry of the divorce decree, which incorporated an agreed permanent parenting plan, the mother moved to Texas.  Under the 2008 parenting plan, the mother was designated as the primary residential parent and received 317 days per year of parenting time, while the father received 48 days with the child in Tennessee.  The parenting plan provided for joint decision-making with respect to educational decisions; however, the mother was permitted to make decisions regarding non-emergency health care, religious upbringing, and extracurricular activities.

In 2013, the parties agreed to modify the parenting plan so that the father would receive 85 parenting days, regular webcam and telephone calls, and joint decision-making regarding major decisions in the child’s life.  In the present action, the father sought to modify the 2013 plan in order to increase his amount of parenting time to 113 days and provide the child with a cell phone to facilitate their phone calls.  After a hearing on the matter, the trial court reduced the father’s visitation to 68 days, denied the cell phone request but increased his number of phone calls per week, and ordered that the mother be allowed to make major life decisions for the child.

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Sharing child custody and parenting decisions after a divorce can be difficult.  The Court of Appeals of Tennessee recently considered the legal aspects involved in these situations in a January 31, 2017 opinion.  The case reached the court after the father appealed a lower court order awarding the mother sole decision-making authority regarding their four children’s religious upbringing and designating that the children specifically attend the mother’s church.church

After the parties divorced in 2008, their parenting plan designated the mother as the primary residential parent and gave both parents joint decision-making authority with respect to the children’s upbringing.  The parties subsequently became engaged in contentious litigation concerning the children, particularly with respect to their religious upbringing.  The court appointed a guardian ad litem for the children and required the parents to submit to a psychological evaluation.  After a hearing, the court modified the parenting plan, giving the mother sole decision-making authority over the children’s religious upbringing.

Despite the parenting plan, the father continued to take the children to his church, sometimes for several hours at a time, which caused the children anxiety.  In response, the mother filed another motion for the court to modify its order, reflecting that the father should not force the children to practice his religious beliefs.  The court then entered an order providing that the children exclusively attend the mother’s church.

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In most child custody cases, a parent sharing custody may not relocate with the children more than 50 miles from the other parent or outside the state, unless expressly authorized by the court.  In a recent case, the Court of Appeals of Tennessee addressed the burden of proof issue regarding a father’s petition to relocate to Oklahoma with his minor children.  The trial court concluded that since he was the petitioner, the father bore the burden of proof on whether the move was for a reasonable purpose.  The trial court ultimately denied the request, and the father appealed.horses

In the case, the parties’ parenting plan designated the father as the primary residential parent of the children.  The father notified the mother of his intention to relocate with the children to Oklahoma to work on a farm owned by his relatives, and he filed a petition with the court.  The mother subsequently filed an objection, contending that there was no reasonable purpose for the move.

In Tennessee, the parent spending the greater amount of time with the child may relocate over an objection filed by the other parent, unless the court finds that the relocation does not have a reasonable purpose, it would pose a threat of specific and serious harm to the child, or the parent’s motive for relocating is intended to defeat or deter the visitation rights of the parent spending less time with the child.  However, even if one of the grounds is proven, the court may still permit relocation based on the best interest of the child.

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In rare circumstances, the court may award primary custody of a child to a non-parent, instead of the child’s father or mother. The Court of Appeals of Tennessee addressed this issue and the requirements necessary to award child custody to a non-parent in Vinson v. Ball (Tenn. Ct. App. Nov. 9, 2016). The appeal followed the trial court’s order granting primary custody of the children to their maternal grandfather.

In Vinson, the mother and father of two minor children entered into a 2010 agreed order providing that the mother would be the primary residential custodian, and the father would have visiting rights while residing in Louisiana. Some time thereafter, the mother sent the children to live with their maternal grandfather in South Carolina, since she was unable to financially care for the children on her own. The father did not pay child support to the mother or grandfather, although he did provide for the children when they were visiting him. In 2014, the father filed a petition to modify the parenting order, alleging that the grandfather was interfering with his visitation rights. In response, the mother and grandfather requested that the court formalize the grandfather’s custody of the children because he had been their primary caregiver and financially supported them for many years. After a hearing, the court awarded primary custody of the children to their grandfather and ordered the mother and father to pay child support.children

In Tennessee, a parent cannot be deprived of custody in favor of a non-parent unless there has been a finding of substantial harm to the child. The courts have explained that the harm must be a real hazard or danger that is not minor or insignificant, and more than a theoretical possibility. In addition, custody decisions should focus on the parties’ present and anticipated circumstances and their current fitness as custodians. Although the court will consider past conduct, biological parents are not required to demonstrate they are perfect before they can be granted custody of their children.

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Relocation after a divorce can become complicated when children are involved, since one party often loses parenting time as a result of the other’s move.  Most times, the relocating parent will need the court’s approval to move with the child out of state.  In Mouton v. Mouton (Tenn. Ct. App. Nov. 16, 2016), the Court of Appeals of Tennessee addressed a lower court’s finding that the mother did not have a reasonable purpose in relocating to Colorado for her employment.  After review, the appeals court ultimately reversed the trial court’s decision.child

In Mouton, the spouses had divorced in 2015 with a permanent parenting plan that designated the mother as the primary residential parent for their child, with 280 days of parenting time per year.  Shortly thereafter, the mother lost her job in Tennessee and accepted an employment offer in Colorado for approximately the same salary.  The mother notified the father, who filed a petition in opposition to the removal of the child.  Due to the court’s order requiring her to be in Tennessee, the mother was unable to keep that position, but she was offered other employment in her field by a Colorado entrepreneur developing a start-up company.  After a hearing, the trial court ruled that there was no reasonable basis for the move, but the mother’s motive for relocation was not vindictive.  The mother appealed the decision to the higher court.

In Tennessee, the appropriate analysis for addressing parental relocation depends on the relative amount of time each parent spends with the child.  When, as in Mouton, one parent spends substantially more time with the child than the other, there is a presumption in favor of the relocating parent.  Specifically, the statute provides that relocation with the child will be permitted unless the court finds that the relocation does not have a reasonable purpose, that the relocation would pose a threat of specific and serious harm to the child that outweighs the harm of a change of custody, or that the parent’s motive for relocating with the child is vindictive, in that it is intended to defeat or deter the visitation rights of the other parent.

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