Tennessee Father’s Relocation For FBI Job Denied & Loses Custody
Tennessee parental relocation law case summary in Tennessee divorce and family law from the Tennessee Court of Appeals. Father prevented from relocating with child.
Blakes v. Sims – Tennessee Parent Relocation Denied
Nicholas Sims (“Father”) and Annette Blakes (“Mother”) were divorced in November 2003 in Texas Circuit Court. Under that Decree, Father was appointed as the sole managing conservator of the parties’ only child. Mother was provided certain visitation. Further, it set forth a detailed parenting schedule and ordered that the primary residence of the child should be Shelby County, Tennessee.
Mother filed a Petition to Enroll Foreign Decree of Divorce in the Shelby County Circuit Court in April 2004. After Father’s initial objection to Mother’s Petition, the parties submitted a Consent Order on Enrollment of Foreign Decree of Divorce, which was entered in June 2004. On July 15, 2004, Mother filed a Petition to Modify Final Decree of Absolute Divorce in the Shelby County Circuit Court alleging that “a substantial and material change of circumstances” existed such that Mother should be designated as the primary residential parent.
Mother alleged that since entry of the Final Decree, Father failed or was unable to properly care for the minor child, and that he was also physically and emotionally unstable. Also, he was unemployed or under-employed even though he held advanced M.B.A. and J.D. degrees. Father’s health deteriorated since entry of the final decree. Father exhibited bizarre behavior, displayed a handicap parking permit, appeared not to be gainfully employed, and did not appear to be largely responsible for the minor child. Rather, Father allowed his mother, the child’s grandmother, to primarily parent the child.
Father then filed a Motion to Require Forensic Psychological Evaluation, asserting that Mother’s mental condition was in controversy and that she was mentally and emotionally unstable. Father contended that Mother ignored the Texas court’s order to submit to a psychological evaluation, while Father had an evaluation in June 2003. After Mother’s Response, the trial court ordered both parents to submit to psychological custody evaluations to be performed by Dr. Fred Steinberg.
On November 30, 2005, Father filed a Petition for Parental Relocation, requesting leave of the trial court to relocate with the child from Memphis to Washington, D.C. because Father accepted an offer of employment with the FBI. Subsequently, the trial court entered orders setting forth temporary parenting plans for the months of January and February 2006. In April 2006, the trial court entered an Order Modifying Temporary Parenting Plan, designating Mother as primary residential parent and establishing a system whereby the child would live with each parent on a six-month rotation. The court based its ruling on a finding that Father’s attempt to relocate with the Child to Washington, D.C. was vindictive, under the Tennessee Code, and that it was in the child’s best interest to have both parents spending as much time as possible with him. A June 2006 Temporary Parenting Plan Order was entered, further detailing the terms of the six-month rotating parenting plan, and naming Father as the primary residential parent through December 31, 2006. On August 14, 2007, the trial court entered a permanent Parenting Plan Order. This Parenting Plan designated Mother as primary residential parent, but allowed Father visitation.
The trial court did not make any express finding regarding the threshold determination of whether a material change in circumstance had occurred such that a modification of custody was warranted. In light of this, the court of appeals was bound to conduct an independent review of the record to determine the preponderance of the evidence.
On appeal, Father asserted that the circuit court erred in modifying the Texas Final Decree, with respect to custody, without proof that a material change in circumstances, affecting the child’s best interest, had occurred. However, because children’s and parents’ circumstances change, our courts are empowered to alter custody arrangements when intervening circumstances require modifications.
Mother contended that she was at a loss to see why Father argued that no material change in circumstances occurred since he admitted in his brief that he, too, petitioned the court for a modification and alleged a material change of circumstances, warranting modification of the parenting plan. However, Father’s Reply Brief correctly pointed out that his Petition for Contempt, Motion to Dismiss, and Petition to Modify Final Decree of Divorce as to Parenting Time stated that “Mother’s willful contempt … constitutes a material change in circumstances, warranting modification of the parenting schedule.” (emphasis added). A 2004 amendment to Tennessee Code differentiated between modification of a custody decree-change of primary residential parent—and modification of a parenting plan-change of schedule. Prior to the amendment, the showing of a material change in circumstances was the same for both modifications of custody and parenting plans.
In this appeal, the court of appeals was asked to determine whether the trial court erred: (1) in modifying the parties’ Final Decree of Divorce absent proof of a material change in circumstances affecting the best interest of the Parties’ child; (2) in making temporary modifications to the Final Decree of divorce absent clear and convincing proof that the child was being harmed or would be harmed in the situation that existed when the modifications were made; and (3) in finding that Father’s motives for relocating were vindictive, and in its concerns about Father’s willingness to comply with future court orders or to provide for the child.
The court of appeals found that Father’s contention that a material change in circumstances existed to warrant a modification of the parenting schedule did not preclude him from arguing, to the court of appeals, that no material change in circumstances existed, such that a modification of custody was appropriate.
Mother’s appellate brief, in addition to her argument that Father acknowledged a material change in circumstances had occurred, pointed to four material changes in circumstances. First, Mother contended that Father refused to follow the Texas court’s order and enter counseling with Mother to resolve some of the conflicts that existed. However, the trial court acknowledged that Father’s failure to submit to a psychological evaluation couldn’t have been the basis for her filing because it hadn’t been ordered at the time.
Second, Mother alleged, as a material change in circumstances that the minor child showed substantial developmental delays and behavioral problems while living primarily with Father which he failed to address. Specifically, she alleged that Father failed to report recognition of child’s delayed speech. According to Dr. Steinberg’s evaluation, the child had a speech delay that affected communication socialization which was unforeseen by the original Texas Court. The evaluation further reported that Mother appeared to have a consciousness about this speech delay and an initial plan for addressing it. However, there didn’t appear to be such a consciousness and plan on Father’s part. Dr. Steinberg noted that it may have constituted a substantial material change of circumstances affecting the child for the court to consider, that the Texas Court had not anticipated.
Third, Mother claims that the changes in Father’s mental and physical health since entry of the Final Decree constituted a material change of circumstance. Mother stated that Father exhibited bizarre behavior and demonstrated uncontrolled physical outbursts in open court. However, Father’s appellate brief also pointed to testimony wherein a number of witnesses described Mother’s verbally abusive conduct during exchanges of the child. Regarding Father’s physical health, Mother testified that she definitely speculated that in addition to his current significant obesity that contributed to his blood clots, and that he was hypertensive. She acknowledged that, because Father would not release his medical records, Mother could not confirm the existence of these conditions, but could only state that those are very likely medical issues that he was currently addressing.
Finally, Mother argued that Dr. Steinberg’s evaluation found changes in circumstances which supported the need to modify the current parenting plan. According to Dr. Steinberg, the assessment showed that there may have been substantial changes in circumstance for the court to consider in several areas ultimately affecting the child that were unforeseen when Father gained custody.
Based on the factors the court of appeals was required to consider in determining whether a material change in circumstances has occurred—the threshold issue in a modification of a custody or visitation arrangement—it found that Mother made out a prima facie case of a material change in circumstances. Dr. Steinberg’s evaluation evidenced at least two compelling material changes in circumstance that arose subsequent to the entry of the Final Decree. Both Dr. Steinberg’s evaluation findings that Father exhibited a personal agenda aimed at minimizing Mother’s involvement with the child and failing to resolve the conflict that existed between Mother and Father, along with the development of speech delays by the child, which Father failed to address, evidenced changes that affected the child’s well-being.
Having found a material change in circumstances, the court of appeals had to determine whether the trial court’s modification of the Final Decree, designating Mother as the primary residential parent, was in the best interest of the child. Again, because the trial court failed to expressly find that such a modification was in the best interest of the child, the court of appeals reviewed the evidence de novo to determine where the preponderance of the evidence lies.
The court of appeals found that the trial court’s designation of Mother as the primary residential parent was in the child’s best interest. In so finding, the court of appeals noted at least two factors which preponderated in favor of Mother acting as primary residential parent: (1) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child; and (2) The emotional needs and developmental level of the child.
Second, Father argued that the trial court erred in making temporary modifications to the Final Decree absent clear and convincing evidence that the child was being harmed, or would be harmed, in the situation that existed at the time such modifications were made. Mother’s appellate brief argued that Father was precluded from raising this issue on appeal, as he failed to raise it before the trial court. Father’s reply brief did not contend that he raised the issue before the trial court. Father argued that he was not requesting ‘relief’ from the appellate court that he failed to request at trial, but simply argued that the trial court’s temporary modifications of custody order were without sufficient proof and, therefore, outside its authority to grant.
Finally, Father contended that the trial court erred in finding Father’s motives for relocating with the child were vindictive and in its concerns about Father’s willingness to comply with future court orders or provide for the child. Because these were factual findings made by the trial court, we must presume their correctness and cannot overturn them unless the evidence preponderates against them.
Father seemingly made few, if any, serious attempts to secure employment in Memphis. Although he claimed to have applied for teaching jobs in Memphis, he was unable to recall any place to which he applied. Thus, the court of appeals held that the evidence does not preponderate against the trial court’s finding of vindictiveness.
Father contended that the trial court erred in finding concern about Father’s ability to provide for the child since he has lived with Father’s mother during the pendency of these proceedings prior to relocating. Our review of the record reveals a sparse employment history prior to Father’s current employment with the FBI. After Father received custody of the Child in July 2003, both Father and the then nine month old child lived with Father’s mother in her home. Apparently, from July 2003 until Father’s move to Washington, D.C. in December 2005, Father’s mother paid all of the house bills, and kept everything up in the home, in order that Father could stay at home with the child. Father’s mother even stated that she would work three or four, even five jobs in order for him to stay at home.
Despite his poor work history, the record reflected a substantial improvement in Father’s employment status. On February 20, 2006, Father testified about a turnaround in his employment outlook; he stated that since December 2005 he had been employed by the FBI in Washington, D.C., on a full-time basis, as a financial analyst earning $50,985.00 per year, along with $10,000 annually toward repayment of his student debt. Based on Father’s position with the FBI, the court of appeals found that the evidence preponderated against the trial court’s concern about Father’s ability to provide for the child. However, in so finding, the appellate court did not reverse the trial court’s ultimate finding that relocation was not in the child’s best interest, as the court’s concern about Father’s ability to provide for the child was only one of at least seven factors the court considered in making its ruling.
The court of appeals affirmed the decision of the circuit court.
Blakes v. Sims, 2008 WL 5130425 (Tenn. Ct. App. 2008).
See original opinion for exact language. Legal citations omitted.
To learn more, buy Miles Mason, Sr.’s book, Tennessee Parent Relocation Law, available on Amazon and Kindle and see Tennessee Parent Relocation Statute Law | Modifying the Parenting Plan and the MemphisDivorce.com Tennessee Family Law Blog with more detailed cases sorted by relocation cases granted and denied.
