Unstable TN Mom Set Bad Example But Remains Primary Residential Parent

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

Robert W. Porter v. Brandi Porter (Kimbrell)  – Tennessee divorce custody modification – Mom stays primary residential parent

The husband and wife were married in 2000, had two children, and divorced in 2003.  The permanent parenting plan provided that the children would reside primarily with the wife, with the father having visitation each weekend and two non-consecutive weeks during the summer.

The wife was employed by a family physician, and the husband was employed as an electrician at Arnold Air Force Base.  At the time of the hearing, both had remarried.

In 2010, the husband petitioned for a change in the parenting plan.  He alleged that the wife’s lifestyle had declined since the divorce, and that her home and relationships were unstable.  After that petition was filed, the husband alleged that the wife had interfered with visitation, and asked that she be held in contempt.

The trial court found the wife in contempt and ordered her jailed for 24 hours, but suspended the sentence.  It modified the parenting plan only because the children had started school, but allowed the wife to remain the primary residential parent.  The husband appealed to the Tennessee Court of Appeals, and argued that he should have been named the primary residential parent.

The Court  of Appeals noted that to change the parenting plan, it was necessary to make two findings.  First, it is necessary to show that there is a material change of circumstances.  Then, it must consider whether the change is in the children’s best interest.

In this case, there was a material change of circumstances, because the children had started school.  In fact, the original parenting plan stated that it would be revisited at that time.  Therefore, the court had to determine whether making the father the primary residential parent would be in the children’s best interests.

The trial court had considered five factors to be relevant.  It found that the husband’s contributions to daily parenting responsibilities had been minimal.  But it also found that the wife had set a poor example in her relationships with men, and that those relationships had caused instability.  It did find, however, that the wife had generally been a good mother.

The trial court also found that the husband had not been encouraging a close relationship between the children and the wife, and questioned his emotional fitness.

The trial court weighed all of these factors and ultimately concluded that the wife should remain the primary residential parent.  Both the trial court and the Court of Appeals noted some inconsistencies in the wife’s testimony, and conceded that her credibility was weakened, but only somewhat.

The Court of Appeals reviewed the evidence, and concluded that the evidence did not preponderate against the trial court’s findings.  Therefore, it affirmed the trial court.  Both the trial court and Court of Appeals agreed that one of the wife’s relationships and the example she set for the children was a “very significant fault,” but that she had otherwise parented appropriately.

Concurring opinion:

Judge Kirby concurred with the majority opinion, and agreed that the trial court’s ruling should be affirmed.  However, Judge Kirby viewed the case as presenting a much closer question.  According to Judge Kirby, the wife’s frequent changes of relationships and moves showed poor judgment, and placed the wife’s interests above those of her children.  Despite her reservations, Judge Kirby concluded that the Court of Appeals could not place its judgment above that of the trial court, and therefore concurred in affirming.

No. M2012-00148-COA-R3-CV (Tenn.Ct. App. Jan. 25, 2013).

See original opinion for exact language.  Legal citations omitted.

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