No Change in Circumstances to Warrant Custody Change for Dad

Tennessee child custody case summary on custody modification.

Jeremy Paul Barmmer v. Joy Denise Staininger

The mother and father in this Sevier County, Tennessee, case were married in 2005 and had one child, born in 2007.  In 2009, the father filed for divorce.  The trial court gave the parties equal co-parenting time, and the father was named the primary residential parent.  The mother later made a petition to modify, and she was named primary residential parent, with the father receiving 137 days of co-parenting time.

The father went back to court in 2015, alleging contempt and seeking to be named primary residential parent.  He was given additional time, but the mother remained the primary residential parent.

More litigation followed in 2016 when the mother filed for contempt.  The father filed a similar motion, asked to modify the parenting plan, and asked for permission to relocate with the child.

Judge Carter Scott Moore was called upon to sort out the conflicting claims, and a hearing was held in September 2018.  The father testified that the mother had violated court orders, particularly with respect to decision making.

The trial court kept a restraining order against the mother in place, but denied the requests for contempt.  It found that a change in the parenting plan was not warranted.  Acting as his own attorney, the husband then appealed to the Tennessee Court of Appeals.

The appeals court noted that in this case, as in any non-jury case, the findings of fact are reviewed de novo, but with a presumption of correctness.  It first turned to the question of contempt.  In this case, the lower court had held that the wife had complied with the relevant order.  Therefore, it affirmed the finding that she was not in contempt.

On the issue of changing the parenting plan, the court noted that this can only be done if there is a material change of circumstances.  That is a factual finding, and the trial court’s finding is presumed to be correct.  After reviewing the father’s testimony, the appeals court agreed that there had been no change of circumstances.  “The only change alleged by Father in this case was that his attitude toward Mother had not affected the Child as originally suspected by the trial court. Notably, Father did not allege that his attitude toward Mother had changed or that they now worked together in an amicable manner.”

For these reasons, the Court of Appeals affirmed the lower court and assessed the costs of appeal against the father.

No. E2018-02058-COA-R3-CV (Tenn. Ct. App. Aug.  19,  2019).

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.