Mediated Custody Change Must Be Approved by TN Judge
Tennessee law case summary on mediation, mediated agreements, and custody modification in Tennessee divorce and family law from the Tennessee Court of Appeals.
Tonya Renee Fletcher v Glen Allen Fletcher – Tennessee Mediation Law
In this divorce case, the mother, Tonya Fletcher and the father, Glen Fletcher, divorced in May of 2001 by consent decree. A permanent parenting plan was put into place at that time that resolved issues for the two minor children. Both parties shared custody of the children with the mother being designated as the primary residential parent. The father was given parenting time every other weekend, holidays and in the summer.
The father petitioned the court for a modification to the parenting arrangement, which was not in the appeal’s courts records. However, the disputes included the father’s concern that the mother would suffer a seizure while with the children and that inappropriate behavior by the parties and their family members was occurring in the presence of the children. In January of 2004, an order was entered, which was then modified as the mother remarried. The mother remained the primary residential parent and was required to move into the new spouse’s home and to have another adult in the home when the children were present. The father also was given more parenting time.
In October of 2008, the father filed another petition for modification. At that time, the mother was no longer married and the grandmother of the children was living with the mother and the children. The father stated the grandmother had been convicted of selling illegal drugs and was scheduled to begin incarceration. As such the mother planned to have the grandfather move in, who was convicted of various things including DUI. The father’s petition stated he was remarried and living in a large home. It also asserted mother had pending DUI and illegal drug charges.
In November of 2008, the trial court held a hearing during which an oral agreement was reached during a recess between the parties. The trial court entered an Agreed Temporary Custody Order where the father was designated the primary residential parent for the children and the mother was granted parenting time every other weekend.
In December of 2009, the mother filed a petition for modification noting a material change in circumstances occurred. She noted that the father was not providing proper medical and dental care, not keeping her informed about the children’s condition, interfered with telephone visitation and did not notify her of the children’s extracurricular activities. She wanted to regain custody. The father denied the allegations.
On March 30, 2010, the parties participated in mediation and on April 12, 2010, the court mediator stated the mediation was success. Two months later, the father filed a motion to enforce the agreement. The agreement stated the father was retained as the primary residential parent, with alternate parenting time for the mother, but did not include a requirement to have another adult in the home with her. The father claimed the mother breached the agreement by failing to sign it.
The mother denied that the mediation was successful and argued that the mediated agreement did not stop the trial court’s requirement to conduct a best interest analysis. The mother asked the court to set aside the mediated agreement and to hold a hearing that allowed the parties and the children to testify.
On July 23, 2010, the trial court held a hearing to enforce the matter with only attorneys present. The mother’s attorney stated the mother did not realize signing the agreement would preclude a hearing where the children would be permitted to testify to their preference and that is why she refused to sign the agreement. The father’s attorney stated that counsel had represented both parties and that they deliberated the terms significantly. The trial court found no allegations of fraud.
The mother appealed on the grounds that there was absence of proof regarding the best interests of the children. The appeals court found that there is no requirement of the trial court to hold a full evidentiary hearing if a mediating parenting plan is agreed upon by both parties. But, it noted that the trial judge has the duty to determine if the parenting arrangement is in the best interest of the child. In this case, the appeals court reversed the order enforcing the plan and remanded it for an evidentiary hearing.
No. M2010-01777-COA-R3-CV, September 26, 2011.
For more information, see Answers to FAQs about Tennessee Divorce Mediation.
See original opinion for exact language. Legal citations omitted.
Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, alimony modification, and divorces including business valuation and forensic accounting issues.
