Tenn. Parents’ Inability To Cooperate Grounds To Modify Parenting Plan
Tennessee law case summary on changing primary residential parent after divorce and family law from the Court of Appeals.
Sandy Jane Smart v. Brian Wayne Smart – Tennessee post-divorce custody modification
When the mother and father divorced in 2007, their child was six years old. Both parents were granted joint custody. In 2011, the mother then a petition to modify custody, and asked to be named the primary residential parent. She did not believe that the joint custody arrangement was working well. The mother testified that the child had spent most of the time with her, and usually spent every other weekend at the father’s house. The mother testified that she took the child to doctor appointments, extracurricular activities, and was more involved in day to day activities. The mother testified that the father was uncooperative. For example, he had refused to allow the child to attend the mother’s sister’s wedding, since it was a weekend when he was scheduled to have parenting time. There was evidence that the father swore at the mother in the child’s presence.
The trial court concluded that the arrangement was not in the child’s best interest, and that it constituted a change in circumstances warranting a change to the parenting plan. Therefore, it designated the mother the primary residential parent, and granted her 240 days parenting time, and the father, 125 days. The trial court further ordered that major decisions should be made jointly. The father appealed to the Tennessee Court of Appeals, and argued that the facts did not constitute a material change or circumstances. The mother also argued that the trial court erred in ordering that major decisions be made jointly.
The Court of Appeals affirmed the modification of the parenting plan, and agreed that there had been a material change of circumstances. The Court first noted that a finding that the parenting plan is not working is enough to constitute a material change of circumstances. And the Court agreed that this had taken place. The Court noted that there were frequent disagreements and lack of cooperation, and agreed with the trial court that this was a material change of circumstances.
It then considered the issue of whether a change would be in the child’s best interests. Again, it agreed with the trial court in this regard. It agreed that the mother was in a better position to provide the continuity that the child needed. The Court of Appeals was also concerned about the father’s difficulty in controlling his anger. Since it agreed with the trial court, it affirmed the change of parenting plan.
The Court of Appeals also agreed with the mother that joint decision making was inappropriate in this case, because the parents had experienced such difficulty in agreeing on such matters. Therefore, it reversed this portion of the trial court’s holding. The Court of Appeals also awarded the mother her attorney’s fees for the appeal, and remanded the case to determine the amount of those fees.
No. W2 M2012-00818-COA-R3-CV (Tenn. Ct. App. July 31, 2013).
See original opinion for exact language. Legal citations omitted.
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