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Tennessee Appeals Court Denies Mother’s Request for Primary Residential Parent Designation in Custody Dispute
Posted by Martin Heller Potempa & Sheppard, PLLC on September 18, 2015
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The Tennessee Court of Appeals discussed the requirements for a modification of custody in a newly issued opinion, Burnett v. Burnett (Tenn. Ct. App. Aug. 31, 2015). The case involved the mother’s request for a change in the primary residential parent designation for her children. The trial court found that the mother failed to prove that a material change in circumstances existed, as required for such a modification. The Tennessee Court of Appeals ultimately affirmed the decision of the trial court denying her request for custody of the three children in the father’s care.
In Burnett, the mother and father had five minor children. After their divorce, the mother was named primary residential parent of two of the children, and they continued to reside with her in Tennessee. The father was designated primary residential parent of the three older siblings, who moved with him to Montana. In her petition seeking permanent custody of the children in the father’s care, the mother made numerous allegations, including that the father had violated the terms of the parenting plan by removing the children from school and homeschooling them without her permission, and that the father obstructed her visitation rights.
On appeal, the court conducted a de novo review of the record in order to prevent the case from being remanded and another hearing held since the trial court failed to make sufficient findings of fact. Under Tennessee law, when a parent requests a modification of custody, the parent must prove a material change in circumstances by a preponderance of the evidence. A material change in circumstances may include the failure of a parent to adhere to the parenting plan or a custody order, or a situation when the parenting plan is no longer in the best interest of the children, or other circumstances. The court may consider factors such as whether the change in circumstances occurred after entry of the order sought to be modified, whether the change was known or reasonably anticipated when the order was entered, and whether the change affects the child’s well-being in a meaningful way.
In its analysis, the Court of Appeals noted that the parents’ conflict over visitation rights had gone on long before the parenting plan was adopted, and that while a violation of a non-custodial parent’s visitation rights can, in some situations, establish a material change in circumstances, the record in the Burnett case lacked evidence that the father’s alleged violations affected the children’s well-being in a meaningful way. In addition, although the father acted in contravention of the parenting plan by homeschooling the children without the mother’s permission, the court stated that not every violation of a parenting plan will rise to the level of a material change necessary to alter the primary residential parent designation. In this instance, the court found that the mother failed to prove by a preponderance of the evidence that the change in the children’s education affected the children’s well-being in a meaningful way.
In any court matter involving your child, you have the right to hire an attorney to protect your interests. The Nashville firm of Martin Heller Potempa & Sheppard offers knowledgeable legal guidance regarding family law issues such as child custody, divorce, support payments, and other concerns, in addition to matters involving estate and personal injury law. To discuss your case with one of our experienced attorneys, contact us by phone at (615) 800-7096 or online.
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