Tennessee Mom Loses Custody Due to Transient Lifestyle and Shoplifting

Tennessee law case summary on custody modification in divorce and family law from the Court of Appeals.

Irtira Herbert v. Jerald L. Harding – Change in Custody in TN Family Law

The mother, Iritira Herbert, and the father, Jerald L. Harding, had a child (the child) together in June 1997.  The parents never married or lived together.  In July 2000, the mother was granted custody of the child and the father was ordered to pay child support, including past, unpaid child support.   There was no visitation provision in the agreement.  In 2001, the father was found in contempt for failing to pay child support, and sentenced to jail time.  By November 2002 the father had paid all outstanding child support debt and his sentence was considered served.

Over the years, the father paid child support regularly, increased his obligation and improved his employment situation.   The father also married, had another child and lived in a four-bedroom house.  The mother, in contrast, moved fairly frequently and was living with a friend from her church at the time of the trial.

The question of custody arose in June 2008 when the mother asked the father to take care of the child for a few weeks while she found a place to live.  The mother took six months to find a permanent place.  During that time, the father enrolled the child in a new school and sent him to football and Boy Scouts.   In October 2008, the father filed a petition to change custody, alleging that the mother’s home was unstable and that she moved frequently, thus negatively affecting the child.   The father argued that he provided a stable environment for the child, evidenced in improved grades at school.   The mother filed an answer and counter-petition, arguing that there had been no change in circumstances, as required by law, and that it was in the child’s best interests to live with her.

The trial included testimony from both the mother and the father, relatives, friends and the child himself.   There was conflicting testimony regarding the father’s involvement with the child, although the mother agreed that since 2007 the father had regular visitations with the child.  The mother argued that since 2003 she had only moved four times.   The child’s records show that through the end of third grade he did well in school.  In fourth grade he changed schools to enter an accelerated program, his grades dropped and he was frequently late or absent.   While living with the father, and attending a new school, his grades improved again.

The two most significant incidences involved shoplifting.  The mother was arrested twice for shoplifting and the child witnessed at least one of these arrests.  In another instance, the child himself was caught stealing.

Based on the evidence presented, the trial court found that there was a change in circumstances, which included the child’s move to his father’s home, his improved grades, the mother’s arrest in the child’s presence and her subsequent conviction for shoplifting.  In light of these changes, the court found that it was in the child’s best interests to live with the father. The mother appealed the ruling.

Appeals court affirms – mother loses custody

The Appeals court restated the standard for modifying custody.  The parent asking for the change in custody must prove that a material change of circumstances occurred AND that a change in custody is in the child’s best interests.  The Appeals court referred to an earlier decision of the Tennessee Supreme Court that lists three considerations when weighing a change.  The court should ask if the change occurred after the initial order was given, if the change was not known or anticipated when the initial order was given and whether the change affects the child’s well-being in a significant way.

The mother argued that these conditions were not met.  She argued that the changes could have been reasonably anticipated since frequent moves are necessitated as a single mother.  She further argued that the changes did not affect the child negatively, since his lower grades were not due to moving homes but due to a change in school to an accelerated program.

The court argued that the important change – transferring the child over to his father – was the one that affected the child’s well-being, in this case in a positive way.   The court also held that the shoplifting, her arrest and her conviction all had a negative impact on the child, as evidenced by his record of stealing.  All told, this combination of events amounted to a material change that affected the child’s well-being.

The court also found that the child’s best interest – the second condition for making a custody modification – was to live with the father.  The law provides a list of some ten factors – including emotional ties to the parents, stability in the home, continuity, mental and physical health of the parents – the court may consider when making this determination.   While the court found that these factors favored the father, the mother argued that these factors changed only recently, since the child began living with his father, but prior to that the child did well living with her.   The court recognized this imbalance but held that giving more weight to the child’s recent circumstances was not an error.

No. M2011-00419-COA-R3-CV (Tenn. Ct. App. Aug. 17, 2012).

See original opinion for exact language.  Legal citations omitted.

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