The courts in Tennessee follow a two step process when considering whether to modify your Parenting Plan. First, the judge must find there has been a material change in circumstances. Then, the court must find that a change in the Parenting Plan is in the best interests of the children.
This may not be easy. When considering whether to change which parent spends the most time with the kids, judges tend to hold the bar high when analyzing these cases because the law recognizes that consistency is important to children, and custody should not be changed upon every whim of the parents or children.
Material Change in Circumstances
The first step is to prove to the court there has been a material change in circumstances that was not anticipated at the time of the original order that affects the child’s best interests. The last part of that sentence is important, as sometimes major changes will have little or no effect on the children.
For example, you may discover your former spouse has taken a new job which requires the child to spend more time in daycare. This may be a huge change for your ex, but unless there is an adverse impact upon the child the court won’t bother with it. Everybody’s situation is unique, and it can be difficult to predict how the court will treat your request.
Fortunately, there are numerous Appellate Court decisions on custody changes, so a review of actual cases is instructive. In a few cases, the parent was able to show the court the child had experienced severe psychological damage from either the current parenting schedule, or some action by the other parent. In these cases the court relied heavily on the testimony of physicians, counselors, or psychologists.
Another way to show a material change is to prove to the court that the other parent is deliberately interfering with your parenting time or parental responsibilities. Typical complaints are that the other parent isn’t following the visitation schedule, refusing to share information about extracurricular activities and medical information, changing residences and refusing to share the location of the child, refusing to allow telephone conversations with the child, or anything else that might interfere with the relationship between parent and child.
On the other hand, sometimes obviously poor choices won’t be enough. In one case, it was shown that the mother had been riding four-wheelers, with the children, while drinking beer. She had also been allowing the children to ride the four-wheelers without helmets. The Court wrote that “an apparently isolated episode of poor judgment of this nature is insufficient to establish a material change of circumstance. If that were the case, no parent ever would be able to maintain custody of his or her children as parents are inherently human and fallible.”
Best Interests of the Child
Once the judge finds that a material change in circumstances exists, you might feel like you’ve won the case. However, the second step may still trip you up. You still need to prove to the court that granting custody to you is in the child’s best interests. The policy (and the law) is that even if the primary parent has messed things up, it could be that placing the child with the other parent is still worse.
Therefore, the judge will start fresh with a look at multiple factors including:
- The love, affection and emotional ties existing between the parents or caregivers and the child
- The disposition of the parents to provide the child with food, clothing, and other necessities
- The importance of continuity in the child’s life
- The stability of the family unit of the parents
- The mental and physical health of the parents
- The home, school and community record of the child
- The reasonable preference of the child, if twelve years of age or older
- Evidence of physical or emotional abuse
- The character and behavior of any other person who resides in or frequents the home of a parent
- Each parent or caregiver’s past and potential for future performance of parenting responsibilities
The court has a lot of discretion in deciding which of the above factors is most important, and which factors favor each parent. The court is also free to consider elements not included in the above list.
Finally, the court will draft a new residential schedule based on the above analysis.
What You Need to Know
If your children spend more time with the other parent and you believe the situation should change, your best bet is to demonstrate to the court that the other parent has shown a pattern of behavior which harms the children in some way. This could be emotional damage, physical danger, or damage to your own relationship with the child.
Next, you’ll need to prove that you have demonstrated the ability to be the better parent. The court doesn’t want to hear promises, no matter how heart-felt. The judge is interested in what you’ve already done.
You will benefit from the advice of an attorney. An attorney can help you find your way through the procedure, court rules, and the best manner of showing the court that the children will continue to suffer unless they are allowed to spend more time with you. Contact me to find out how I can help.