Dad Unable to Change of Custody After Disputes Over Education

Tennessee child custody modification case summary.

Angela Michelle Newberry v. Jeremy Mack Newberry

The mother and father in this Hamilton County, Tennessee, case were divorced in 2010 and were the parents of three children born in 1998, 2004, and 2006.  The parties agreed to a parenting plan which gave the father parenting time every other weekend during the school year, and every other week during the summer.  The parents agreed to joint decision making regarding education, extracurricular activities, religion, and non-emergency health care.

In 2011, the mother moved to Dayton, Tennessee, in order to be closer to the father and other family members.  In 2012, the father, who was then living with his girlfriend, moved 35-45 minutes away to Ooltewah, and the father remarried the next year.  The father and his new wife had two children, born in 2010 and 2012.

In 2014, the father went back to court to modify the parenting plan and asked to be named primary residential parent, with the mother having the same visiting time he had previously enjoyed.  The father alleged that the mother no longer had the ability to run the household.  He alleged that she was unstable, didn’t help the children with their homework, and had allowed the daughter to date an older boy.  He later alleged alienation, in that the daughter no longer wanted to take him to soccer games as he had done for four years.

The trial court, Judge W. Neil Thomas, III, agreed that the father had proven a material change of circumstances based upon disagreements as to education.  It therefore granted the father’s requested change in custody.  The mother appealed to the Tennessee Court of Appeals, which in 2016 vacated and remanded the case on the grounds that the lower court had applied the wrong standard.

On remand, the lower court heard no further evidence, but made the same findings and applied them to the standard applied by the Court of Appeals.  It again granted the father’s requested change, and the mother brought a second appeal to the Court of Appeals.

The appeals court reiterated that the proper test has two parts.  First, the trial court must find that there has been a material change of circumstances.  If so, then it must consider whether a change of primary custody is in the child’s best interest.  It noted that the party seeking the change bears the burden of proof to show changed circumstances.

The appeals court noted that the main disagreement between the parties boiled down to which school the younger children would attend.  The mother testified that the children were getting A’s and B’s in their current school, but the father wanted to enroll the children in a private school and that he and his parents would pay the tuition.  There were also disagreements over which extracurricular activities the children would participate in.

The appeals court zeroed in on the fact that the lower court had made no finding as to whether these kinds of disputes could have been reasonably anticipated at the time of the original parenting plan.  It also noted that there was no specific finding that the disagreements affected the children’s well-being in a meaningful way.  It also noted that the trial court’s order had the effect of separating the siblings, since the older daughter, a senior in high school, was unaffected.

After reviewing all of the evidence, the appeals court held that the lower court had erred in finding a material change of circumstances since the divorce.  Accordingly, it reversed the lower court’s finding and ordered the original parenting plan reinstated.

No. E2017-00340-COA-R3-CV (Tenn. Ct. App. June 20, 2018).

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 examples of parenting plans and child support worksheets from real cases available on Amazon.com.