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Father Successfully Challenges Order Reducing His Parenting Time in Tennessee Appeal
Posted by Martin Heller Potempa & Sheppard, PLLC on March 9, 2017
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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.
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.
To modify an existing parenting plan in Tennessee, the court must engage in a two-step analysis. First, the court must determine whether a material change in circumstances has occurred since the entry of the prior order. The party seeking the modification has the burden of proving a material change in circumstances. Second, upon finding that a material change in circumstances has occurred, the court must consider several factors enumerated by statute and make a determination as to whether it is in the child’s best interests to modify the current custody arrangement.
The appeals court first noted that the mother never requested an increase in parenting time or filed a proposed parenting plan. The court went on to find that the record did not contain sufficient evidence to support a reduction in the father’s parenting time, nor did it suggest that the child’s well-being was impaired by the existing visitation arrangement. In fact, the court observed that the father went to great lengths to see his child in Texas and explained that severely limiting the father’s ability to spend time with the child on weekends in Texas, without evidence that his visitation was disruptive or otherwise against the child’s best interest, would go against the directive of the child custody and visitation statute. Accordingly, the court found in favor of the father, and the order was reversed.
The Nashville divorce lawyers at Martin Heller Potempa & Sheppard provide compassionate and dedicated legal advice to individuals in all aspects of family law. We can represent clients in spousal and child support disputes, child custody modifications and visitation cases, divorce, and other domestic matters. To discuss your legal issue with an attorney in a confidential consultation, contact Martin Heller Potempa & Sheppard by phone at (615) 800-7096 or online.
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