The parents divorced in September 2007. At the time, the parties had one minor child (a son), and the parties entered an Agreed Tennessee Permanent Parenting Plan wherein the Mother was designated the child’s primary residential parent. The Father was granted 130 days per year of visitation, and the parents shared joint decision-making.
Following the divorce, the parties’ communication and interactions became increasingly hostile. This was partly due to the Mother’s “overt bitterness” against the Father, along with the Mother’s declining mental and emotional health. The child, who suffered from ADHD, began acting out more and more.
In 2008, the child began seeing a psychiatrist and was able to manage his ADHD. The psychiatrist noticed, over time, that the child’s development was suffering because of his parents’ continual conflict.
The Mother had a history of depression, and she sought treatment from a psychiatrist in 2009. She was subsequently diagnosed with major depression and anxiety. She also began seeing a counselor for therapy in 2010. In 2010, the Mother’s diagnosis was confirmed as bipolar disorder.
In 2011, the Mother and child had a falling out. The child was then 15 years old, and he chose to move into his Father. It seemed the Mother was in agreement with this arrangement. However, he voluntarily returned to the Mother’s home the next month. While the child was living with the Father, the Father filed a Petition to Modify the Parenting Plan, alleging substantial and material changes in circumstances existed and that it was in the child’s best interest to award the Father primary residential parent status as well as sole decision-making authority.
While the petition was pending, the child continued to act out in various ways, the parties struggled to follow the current court orders related to visitation, and the Mother resisted her psychiatrist’s efforts to manage her medication.
At a hearing in July 2011, the trial court became concerned that the child was thinking of harming himself or others. This was based on recorded interviews of the child, wherein the child made statements to that effect. The court, therefore, immediately suspended the Father’s parenting time and ordered a forensic evaluation of the child by a neuropsychologist, who was asked to provide recommendations as to a parenting schedule that was in the child’s best interest. Both parents were ordered to cooperate in the evaluation. Father cooperated, but the Mother did not, refusing to provide access to her psychiatric and medical records.
The Mother then went further in placing bizarre phone calls to the neuropsychologist, expressing a belief that the Father was plotting to kill her and booby-trap her vehicle. Within one month, the Mother suffered a mental breakdown and was involuntarily confined for eight days in a psychiatric facility.
After the mother’s hospitalization, the Father requested to be designated the child’s temporary primary residential parent. The court held a hearing, allowing the neuropsychologist to testify. The trial court entered two orders following that hearing. One designated the Father as primary residential parent and sole decision-maker on a temporary basis, and the second found that it was not in the child’s best interest for the Mother to have any parenting time until further court orders. Therefore, the Tennessee trial court suspended the Mother’s parenting time.
Upon advice of the neuropsychologist, the Father immediately enrolled the child in a therapeutic wilderness program from September – December 2011. Upon completion of this program, the child was enrolled in a boarding school in Virginia.
The trial court entered an order modifying the parties’ Tennessee Permanent Parenting Plan in August 2012, finding a material change of circumstances that was affecting the child’s best interest, and also finding that it was in the child’s best interest for the Father to be designated primary residential parent.
The trial court found that the Mother’s mental health had greatly improved since her 2011 hospitalization, but the trial court also found that this Mother was still engaging in “overt acts of bitterness and anger” toward the Father. This bitterness affected her ability to co-parent with the father, and hindered her ability to provide a stable environment for the child, as it caused a burden to the child.
Mother appealed.
Appeal
A petition to change the child’s primary residential parent involves a two-step analysis. First, the petitioner must prove by a preponderance of the evidence that a material change of circumstances has occurred. Secondly, the petitioner must prove that a change of custody is in the child’s best interest.
Tennessee Code Annotated §36-6-101(a)(2)(B) clarifies what constitutes a material change of circumstances for this type of petition:
If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of substantial risk of harm to the child. A material change of circumstances may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.
There are no set rules for determining when a “material change” has occurred in a Tennessee custody modification case. However, there are several considerations for courts. First, the courts look at whether a change has occurred after the entry of the order sought to be modified. Secondly, the court considers whether a change was not known or reasonably anticipated when the order was entered. Finally, courts must determine whether the change is one that affects the child’s well-being in a meaningful way.
The trial court found the following material changes to exist: (1) co-parenting eroded after the divorce with respect to scheduling, cooperation and decision-making; (2) the neuropsychologist found that the Mother had “alienated” the son’s affects to the Father to a significant degree. This was supported by the fact that the Mother believed the Father was evil, cruel and verbally abusive – all of which were unsubstantiated claims. The Mother blamed Father for problems in her relationship with the child, and she voiced those concerns to the child.
The trial court also determined that these changes occurred after the entry of the order to be modified, that they constituted changes that were not known or reasonably anticipated at the time of the last order, and the changes were affecting the child in a meaningful way.
Furthermore, the court-appointed therapist found that the Mother’s alienation and anger toward the Father were affecting the child. The Mother was in no state to exercise her parental duties, and the neurpsychologist recommended supervised visitation for the Mother.
The trial court and appellate court both found that, even though the Mother had been the child’s primary caregiver since 2011, she had not done so successfully, and her ability to parent was impaired by her bitterness toward the Father and her own mental health and emotional issues.
Therefore, the Tennessee Court of Appeals affirmed the trial court’s ruling.
Austin v. Gray, No. M2013-007808-COA-R3-CV. Appeal filed out of the Davidson County, Tennessee Circuit Court.
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