Mom’s Unauthorized Trip to Canada Did Not Warrant Change of Custody

Tennessee child custody modification case summary.

In Re Braylin D.

The child in this Davidson County, Tennessee, custody case was born in 2007.  In 2009, the Juvenile Court named the mother as the primary residential parent with 262 days of parenting time per year.  The father was granted 103 days of parenting time.  After that plan was entered, the parties were back in court numerous times for modification of parenting time and child support.

In 2015, the father made a motion to modify the parenting plan, and the mother made motions for collection of child support and contempt.

After hearing evidence, the trial court modified the parenting plan and named the father the primary residential parent, awarding him 235 days of parenting time and the mother 130 days.  The trial court also made orders regarding child support.  The mother then appealed to the Tennessee Court of Appeals, arguing that there had not been a substantial and material change of circumstances sufficient to warrant the modification.  She also argued that the change was not in the child’s best interests.

The trial court had based its ruling on the fact that there had been a failure on the part of both parents to adhere to the parenting plan with regard to visitation and phone visitation.  The trial court had pointed to times when the father had been unable to make phone calls to the child as scheduled by the parenting plan.  In addition, the trial court cited a case when the mother had taken the child to Canada without notifying the father.  The mother argued that this trip had been for less than 48 hours, but the trial court found it “inconceivable” that the mother had driven the child from Nashville to Toronto, stay there for just a couple of hours,  and then drive back, all in less than 48 hours.

The appeals court conceded that the parties had a history of contentious litigation.  However, it also noted that those difficulties were not of the character or magnitude that would warrant a change of custody.

The court noted that there was some evidence showing that the child was having difficulties adjusting, and these included a therapist’s testimony and medical records.  However, none of this evidence mentioned the trip to Canada or the missed phone calls.

The court cited an earlier case holding that a violation of the parenting plan did not necessarily constitute a material change of circumstances unless the other party could show that the violation affected the child’s well-being in a meaningful way.  In this case, the appeals court held that this standard was not met, and therefore reversed the change of residential parent.

The mother also asked for attorney’s fees for both the trial and appeal, but the appeals court declined to award them.

For these reasons, the Court of Appeals reversed the judgment and remanded the case.

No. M2015-02491-COA-R3-JV  (Tenn. Ct. App. Feb. 7, 2017).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.