Dad Gets Equal Time After Mom Moves & Lives with Fiance
Tennessee child custody modification case.
Father vs. Mother (names removed by request of a party) – Tennessee right of first refusal & parenting time modification
The mother and father in this Tennessee divorce case were the parents of one child who was born in 2011. They were divorced in 2012, and the trial court set a parenting plan naming the mother as primary residential parent with 256 days parenting time. The father was awarded the remaining 109 days per year. The plan called for the father to cover all transportation of the child, unless the mother moved more than 30 miles. Child support was set at $543.70 per month.
In 2013, the father went back to court for modification of the plan, arguing that there had been a material change in circumstances. He argued that the mother had denied him the right to pick up the child at daycare and that she kept him out of daycare on days of special events that the father wanted to attend. In addition, she had refused to let the child stay with father when relatives were visiting from out of state and that she had moved to an area that required an hour and fifteen minute drive. She had also switched daycare providers without notifying him. Finally, the father argued that the mother was cohabitating with her fiancé. He asked for a modification of the plan, with each parent having the child for 182.5 days per year.
After hearing all of the evidence, the trial court concluded that there had been a material change of circumstances, and that the child’s needs called for more time with the father. Therefore, it granted the father’s request. After analyzing the parties’ income, it also ordered the mother to pay $319 per month in child support.
Dissatisfied with this turn of events, the mother appealed to the Tennessee Court of Appeals, which first turned to the issue of whether there had been a material change of circumstances. The appeals court focused primarily on the amount of travel time. It noted that the father provided most, if not all, of the transportation, and that the mother’s new home required a long drive, even though it was within the 30 mile radius. It also noted that the mother had been less than congenial in meeting at closer locations. It agreed with the trial court that the evidence showed a material change of circumstances.
The court then turned to the issue of the best interest of the child. The appeals court noted that the father had been very involved with the child and that the child was close to him. Of particular concern to the court was the fact that mother had not notified the father when the child was absent from daycare.
The appeals court also examined the trial court’s award of child support. After carefully examining the record, it held that the award was proper.
One aspect of the trial court’s order was the provision that if either parent were out of town for more than 48 hours, then the other parent would have the right of first refusal to exercise parenting time with the child. Since the mother had not appealed this particular part of the order, the appeals court did not expand any further on this issue.
For these reasons, the Court of Appeals affirmed the trial court’s ruling and assessed the costs of appeal against the mother.
No. M2014-00372-COA-R3-CV (Tenn. Ct. App. June 18, 2015).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans.
