After your divorce, if you feel that the other parent is acting in a way that is harmful to the children, asking the court to modify the parenting plan is a perfectly appropriate thing to do.  However, if you’re going to accuse the other parent of wrongdoing, you better be able to back up your claims, as the case of Payne v. Payne demonstrates.


The couple had a two-year-old child when the divorce was granted in October of 2005.  Mr. Payne was named the primary residential parent, but Ms. Payne had liberal visitation.

Within a few months, Mr. Payne asked the court to modify the visitation schedule.  He alleged that the mother was having sex with men to whom she was not married, and one of the men touched the child inappropriately.  The judge issued a restraining order to suspend the mother’s visitation while the case was pending.  Ultimately, Mr. Payne was unable to submit any proof that the mother or her boyfriend did anything wrong, and the court reinstated the previous schedule.

Six months later, the father filed another petition with the court to modify the parenting schedule.  This time, he alleged that the mother was using illegal drugs.  Also, for a second time, he accused one of the mother’s friends of touching the minor daughter.  The judge entered a restraining order against the mother requiring her parenting time to be supervised until the parties could have a hearing.  However, once again Mr. Payne was unable to prove any wrongdoing by the mother, and the parties eventually went back to the original parenting schedule.

Mr. Payne was able to hold out for two years before he filed a third petition, asking that the parenting schedule be revised.  This time his concern was that the mother was going to change the child to a school located closer to the mother’s home.  The mother denied the allegations, then filed her own petition alleging that Mr. Payne was interfering with her relationship with the child, and requesting that he pay her attorney’s fees.

The judge determined that the father, through filing multiple frivolous petitions, had interfered with the child’s relationship with her mother.  This constituted a material change in circumstances and the court found that a new parenting schedule would be in the child’s best interests.  The judge ordered that the mother would be the primary residential parent, the Mr. Payne would have visitation, the father would pay child support, but the court did not order Mr. Payne to pay the mother’s attorney’s fees.

The Appeal

The parties appealed several issues, however for our purposes I’m only going to focus on two issues:  Mr. Payne disagreed that the judge could find his previous petitions to be “frivolous” and use that conclusion to determine that it would be in the best interests of the child to reside with the mother, and Ms. Payne thought the court should have awarded her attorney’s fees.

Frivolous petitions as material change of circumstances

The court first points out that because trial courts have wide discretion in making determinations affecting custody and visitation of children, appellate courts will generally not alter the trial court’s order unless it can be shown that the order is either based on the wrong legal standard, is not supported by the preponderance of the evidence, or is against basic logic or reasoning.

In the various petitions filed by Mr. Payne, he made 3 main claims:

  • The mother’s friends touched the child inappropriately
  • The mother was using illegal drugs
  • The mother was planning to move the child to a school closer to her home without the father’s permission.

However, Mr. Payne admitted in questioning that he had never really investigated any of these claims before bringing his concerns before a judge.  In summarizing the testimony, the court said the following:

With respect to Father’s allegation that Mother’s friend touched their child inappropriately, Father testified not only that he had no proof of this allegation, but that before filing his petition Father knew that neither the child’s pediatrician nor the psychologist who saw her had any reason to believe the child had been molested in any way. …

In [the] second petition Father repeated the allegations he had included in his first petition, about which he had no proof, and he added the allegation that Mother was taking illegal drugs. Upon questioning by Mother’s attorney, Father testified that he had not witnessed Mother using drugs, he did not ask Mother whether she was using drugs, he did not ask Mother’s mother, where she was living at the time, whether she was using drugs, and he did not ask any of Mother’s friends whether she was using drugs before filing this petition.

In the [third] petition he filed in September 2008 … Once again Father repeated the allegations he had made in his first two petitions, about which he had no more proof than he had when he filed the earlier petitions. However, in this petition Father added a new allegation: that Father was afraid Mother would move their child to a school that was closer to Mother’s residence if the court did not reduce Mother’s time with the child. Upon questioning by Mother’s lawyer, however, Father testified he had not investigated whether Mother had any plans to move the child to a different school.

The court concluded that based on Mr. Payne’s own testimony, it was reasonable for the trial judge to conclude that his frivolous petitions (and the accompanying restraining orders preventing the mother from spending time with the child) interfered with the child’s relationship with her mother.  Based on the father’s actions the trial court was reasonable in its conclusion that it was in the child’s best interest to name the mother as the primary residential parent.

Mother’s attorney’s fees

The court’s language is pretty clear:

Awarding Mother attorney’s fees is reasonable and equitable in this case. Mother was compelled to defend three petitions Father filed without adequately investigating whether the allegations had any basis in fact. In these petitions, Father was unable to prove even one material change of circumstance supporting his request that Mother’s time with their child be reduced. Father agreed before the trial court the parenting plan should be changed, but was unable to prove that the child’s best interests required some other plan than the one adopted. Consequently, we conclude that Mother is entitled to an award of attorney’s fees in defending these actions at the trial level. Additionally, we award Mother attorney’s fees incurred in this appeal.


This case is a little unusual, but there are people that just can’t seem to leave their ex-spouse alone.  Before you decide to take your ex back to court, you should make sure you have the ability (or will have the ability) to show the judge some evidence to back up your claims.

Need help with your own custody case?  Contact me to find out how I can help.