Dad Can’t Modify Visitation Just 1 Month After Original Order

Tennessee child custody modification case summary.

Matthew Keith Allyn v. Kathryn Anne Donahue

The parties in this Montgomery County, Tennessee, case were the parents of three minor children.  Prior to their divorce, the mother moved with the children to New York, and the father filed a complaint for divorce in Tennessee.  They ultimately came to agreement, and the court entered a parenting plan naming the mother as the primary residential parent.  The father was to have 30 days per year of visitation, to be supervised by his mother and grandmother.  The father was also ordered to undergo an alcohol and drug assessment.  That assessment concluded that he was not in need of substance abuse treatment at that time.  He was recommended to attend outpatient therapy.

Just a month later, the father filed a petition to modify visitation and child support.  He alleged that there had been a material change of circumstances in that he had completed the recommended therapy.  A hearing was held in November 2019 before Judge Kathryn Wall Olita.  The court denied the father’s petition on the grounds that there had been no material change of circumstances.  In particular, the court found that the father had been less than forthcoming about numerous issues and had minimized his potential anger issues.  Disappointed by this outcome, the father appealed to the Tennessee Court of Appeals.

After stating the standard of review, the appeals court turned to the evidence of the case.  It noted that the material change of circumstance must affect the child’s best interest.  And most importantly, the change must have occurred after the order that the petitioner was seeking to modify.

Even though the father noted that the threshold for changes in visitation was a low one, the court concluded that this low threshold had not been met in this case.  When the appeals court viewed the evidence in its entirety, it concluded that the father had not proven sufficient facts to show a change since the original order.  It stressed that barely a month had gone by, and that nothing of consequence had changed during this period.

For these reasons, the Court of Appeals affirmed.  It also awarded the mother her attorney’s fees for the appeal.  In ordering payment of these fees, it stressed the mother’s inability to pay as well as the father’s bad faith in making the motion.

The appeals court remanded the case for calculation of those attorney’s fees.  The Court’s opinion was delivered by Judge Arnold B. Goldin, and Judges John W. McClarty and Kenny Armstrong concurred.

No. M2019-02229-COA-R3-CV (Tenn. Ct. App. Feb. 26,  2021).

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.