Dad Must Win Custody Modification a Second Time at Trial

Tennessee child custody modification case summary.

At the time of their 2011 divorce, the parties to this Tennessee case were the parents of two adopted children. Under the original parenting plan, the father was named the primary residential parent of one of the children, with the mother being named primary residential parent of the other. Later that year, the father filed an emergency petition asking to be named primary residential parent of both. He alleged that the mother had physically abused both children, and did not provide a safe and suitable home.

The trial court held a hearing, and issued an order having both children live with father, with the mother having visitation. In 2012, the father filed another emergency motion in which he alleged that one of the children had been sexually abused by the maternal grandmother. The court suspended the mother’s visitation, but ordered that it be reinstated gradually.

A final hearing was held in 2013. At this time, the oldest child was 19. He testified that he had moved out from the father’s house after a violent argument, and he was living with the maternal grandparents.

The younger child also testified, as did a psychologist. The psychologist expressed the opinion that the child had been the subject of physical abuse, but could not confirm the sexual abuse.

The trial court found that the father had established a material change of circumstances, and that it was best to designate the father as the primary residential parent. The mother was to receive 92 days visitation per year.

The mother appealed to the Tennessee Court of Appeals. She argued that the trial court’s order was lacking because it did not make specific findings of fact.

The appeals court noted that the procedure for a change of custody is a two-step process. First, the court must find a material change of circumstances. If it finds one, then it must determine whether a change of custody is in the child’s best interest.

It also noted that the trial court must state the facts that support its determination. Merely stating the conclusion is insufficient. The appeals court must be able to see the steps that the lower court used in reaching its decision. The appeals court concluded that the trial court’s order had not met this standard.

In this situation, the Court of Appeals would normally do one of two things. First of all, it would normally remand the case for the lower court to state the factual findings. Unfortunately, in this case, the trial judge had retired, and was no longer available to do this. The other option would be for the appeals court to review the record and make those findings itself. However, in this case, there were many factual disputes in the parents’ testimony, and resolving them would require the appeals court to weigh the credibility of the witnesses. Since this is best done by the trial judge who hears the testimony, the appeals court concluded that this option was not available.

Therefore, the Court of Appeals held that the proper remedy was to reverse the judgment, and send the case back for a new hearing so that the new judge could make the proper factual findings.

No. M2014-00921-COA-R3-CV (Tenn. Ct. App. Mar. 18, 2016).

See original opinion for exact language. Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.