The parties were married and had one child in 2004. Shortly after his birth, the child was diagnosed with a rare genetic disorder called Phenylketonuria or PKU, which means the child’s body could not break down an amino acid called phenylalanine (Phe). If Phe builds up in the child’s blood, it can lead to mental retardation, seizures and other serious neurological problems. Phe is found in many foods that are rich in protein, such as meat, eggs and dairy products. Therefore, the child suffering from PKU was required to follow a strict diet.

In 2008, the parents divorced, and Mother was designated the child’s Primary Residential Parent pursuant to the parties’ Tennessee Agreed Permanent Parenting Plan. The parties shared equal parenting time under the plan, and they shared joint decision making. The parties’ Permanent Parenting Plan included the following provisions:

“1). Both parents shall record the child’s food intake in one document that shall be exchanged when the child is exchanged.

2). The child’s diet shall be in accordance with the child’s current medical condition.”

In 2011, the Father filed a Petition in Murfreesboro, Tennessee with the Rutherford County Chancery Court seeking a modification of the parties’ parenting plan. He requested to be designated the child’s Primary Residential Parent and alleged that the Mother regularly violated the parenting plan by giving the child food that was inconsistent with his medically-prescribed diet and failing to provide Father with an accurate record of the child’s food intake.

This case was subsequently transferred to a Nashville court, in the Davidson County Circuit Court.

At a final hearing on the Father’s petition, a nurse practitioner testified about the child’s condition, and a nutritionist who had worked with the child since he was 2 weeks old also testified. The nurse practitioner testified that, failure to closely monitor the child’s intake of Phe can cause severe brain damage and other neurological effects over time. She also testified that the Mother was unable to properly regulate the child’s diet and that the Mother did not understand the disease and the importance of maintaining a proper diet for the child.

The nutritionist testified that she had met with the Mother several times to teach her about how to keep food records, but these meetings were unsuccessful because Mother did not believe that the child had PKU, and Mother believed that if she prayed the child would not have PKU. She further testified that the Mother often gave the child foods that he should not be eating and that Father always provided accurate food records for the child.

The trial court found that “Mother has not been a truthful witness” and that she failed to properly maintain and exchange the food records of the child, which concerned the Court for the child’s health. The Court determined that these failures constituted a material change of circumstances that warranted a modification of the parenting plan. Father was designated as the child’s Primary Residential Parent, and Mother was granted 50 days per year with the child.

Mother appealed, challenging the court’s finding that there was a material change in circumstances warranting the Father being designated the child’s Primary Residential Parent.

Modifying a Tennessee parenting plan typically requires a 2 step analysis: A party requesting the modification must prove that (a) a material change of circumstances has occurred, and (b) that a change of custody or residential schedule is in the child’s best interest.

A material change of circumstance for purpose of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.

The proof showed in this case that the child suffered from a rare disease, which required him to follow a strict diet. The proof also showed that Mother did not believe there was anything wrong with the child, and while the child was in her care, she was unable or unwilling to conform his diet to the medical requirements or to accurately record his dietary intake.

The Tennessee Court of Appeals noted that “We do not doubt that Mother loves her child or that she wants the best for him, but she appears unable to routinely follow the restricted diet that his medical condition requires.”

The trial court’s modification of the parenting plan was upheld.

If you have questions about modifying your current Tennessee parenting plan, contact our office today to schedule your free consultation.

Our office serves the following Tennessee counties: Davidson County, Williamson County, Rutherford County, Maury County, Sumner County, Wilson County, Cheatham County, Dickson County and Montgomery County.

Austin v. Torres – M2012-01219-COA-R3-CV (March 20, 2014).