Articles Posted in Child Custody

Allegations of domestic violence or abuse are serious, especially in divorce and child custody cases.  A March 1, 2018 decision from the Tennessee Court of Appeals reveals some of the legal considerations and issues that may be involved.  The parties in the case had one child together during their marriage.  After a trial, the court declared the parties divorced and entered a final order designating the father as the primary residential parent.  On appeal, the mother contended that the trial court failed to properly consider the father’s history of domestic violence and abuse against her.hands

In Tennessee, the final order in a divorce action must incorporate a permanent parenting plan for the parties’ minor children, including a residential schedule and designation of a primary residential parent.  In developing the plan, the trial court must consider certain statutory factors and any relevant statute.  In particular, TCA 36-6-406(a)(2) provides that a parent’s residential time must be limited if the court finds, based upon a prior order or other reliable evidence, that the parent has engaged in physical or sexual abuse, or a pattern of emotional abuse, of a parent, child, or other person living in the household.

In the case, the trial court found that the father committed domestic violence against the mother.  Although the incidents were not reported to the police, they were corroborated by the testimony of several witnesses, who stated that they saw the mother’s bruises, black eyes, and busted lip.  The court also considered the fact that the mother had once left the child in a hot car and was currently living with a man who had been convicted of a felony, among other considerations. Ultimately, the trial court found that while it was greatly concerned with placing a child with a man who had engaged in physical abuse, under the totality of the circumstances, it was in the child’s best interest that his father be designated as the primary residential parent.

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Agreeing to child custody changes outside of court may affect future proceedings to modify a court-ordered parenting plan.  A January 9, 2017 Tennessee child custody case before the Court of Appeals of Tennessee illustrates the complexities of this issue.  The appeal arose out of the modification of a parenting plan in a post-divorce

The parents in the case had divorced in 2010, and a permanent parenting plan was adopted as part of the divorce decree.  Under that plan, the parents were awarded equal parenting time.  When the child started school in 2012, however, the parents informally modified the parenting schedule, since the parents were living in different counties.  Their arrangement provided the father with parenting time every other weekend, with holidays and school breaks split equally.  In 2015, the mother sought court approval of their informal arrangement by filing a petition to modify.  When the trial court adopted the mother’s proposed plan, the father appealed.

In Tennessee, the modification of an existing parenting plan requires the parent who seeks the change to prove that a material change of circumstances exists that affects the child’s best interest.  Unlike the process to switch the primary residential parent, the threshold to establish a material change of circumstances is very low when the court is merely changing a parenting schedule.  As a result, a material change of circumstances may include, but is not limited to, a failure to adhere to the parenting plan under the relevant statute.

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Some parents are unable to reach an out-of-court child custody agreement during a divorce to submit to the court.  When these situations turn into prolonged courtroom litigation, a Tennessee child custody attorney can work to protect the interests of their clients in court.  A November 22, 2017 post-divorce case before the Court of Appeals illustrates the complexity of child custody in jacket

The parents in the case divorced in 2007 with two children.  The trial court had entered a permanent parenting plan designating the mother as the primary residential parent of the older son and the father as the primary residential parent of the younger son.  In 2010, the parties sought a modification of their parenting arrangement, and the trial court allowed a divorce referee to hear the matter.  In 2012, the referee filed a recommendation that the mother should be designated as the primary residential parent for both of the children, which was adopted by the trial court.  The appeals court subsequently vacated and remanded the matter for the trial court to conduct the proceedings.

During those proceedings, the parties both sought to be the younger child’s primary residential parent, since the older child had reached the age of majority.  At the hearing, the father repeatedly requested that the child, who was 13 at the time, be allowed to express his preference to the court regarding where he wanted to live.  The trial court refused the request and ultimately designated the mother as the child’s primary residential parent. The father filed another appeal.

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After a divorce has been finalized, a change in circumstances may cause new and unexpected disputes between the ex-spouses.  An October 25, 2017 case involving a post-divorce modification of a parenting plan illustrates the issues that may arise following major lifestyle changes.  The case came before the Court of Appeals of Tennessee after the trial court found a material change in circumstances existed and modified the parties’ existing parenting plan.  The mother appealed insofar as the trial court did not completely adopt her proposed plan, and the father argued there was no material change in circumstances.children

The parents in the case had one child during their marriage.  Their original parenting plan designated the mother as the primary residential parent but gave each parent equal parenting time and joint decision-making in the areas of education, non-emergency health care, religion, and extracurricular activities.  The mother subsequently filed a petition to modify the parenting plan shortly after the father had converted to Messianic Judaism.  The mother, a practicing Christian, alleged that their conflicting social and religious views concerning the child’s upbringing had led to ongoing disagreements regarding vaccinations, education, secular holidays, and other subjects.  The court awarded educational and non-emergency health care decision-making authority to the mother, as well as additional parenting time on religious and secular holidays.

In Tennessee, to modify a parenting plan, the court must first determine whether there has been a material change in circumstances since the entry of the existing parenting plan.  Secondly, the court applies statutorily enumerated factors to determine whether a modification of the parenting plan is in the best interest of the child.

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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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