Despite Numerous Cross-Country Moves, No Change in Custody
Tennessee child custody case summary on custody modification and parental relocation.
The mother and father in this case were married in Illinois in 2003, had a child in 2004, and divorced in Oregon in 2006. By agreement, the Oregon court granted the mother sole legal custody. The mother remarried, and moved to Arizona and then to Tennessee. In 2013, the Court in Williamson County, Tennessee, took jurisdiction of the court and registered the custody orders.
Meanwhile, the stepfather had accepted a new job in Illinois, and planned to move there with the mother and child. The father objected, and also believed that his parenting time had been limited by the mother. He went to court in Tennessee asking for a modification of the order, claiming that there had been a material change in circumstances.
After hearing lengthy testimony, the trial court concluded that there had been a material change of circumstances. In making this finding, it focused on the fact that there had been two quick moves of a significant distance. The trial court also noted that there had been increasing tension between the parents, and that the mother had failed to follow orders made by the Arizona court. It found that the current parenting plan was unworkable given the circumstances.
The trial court then went on to examine the best interests of the child, and concluded that it was not in her best interest to change primary residential parent. However, the trial court increased the amount of the father’s parenting time to 80 days per year. The lower court also made some adjustments in the amount of child support. The father appealed to the Tennessee Court of Appeals.
The father first argued that the trial court had improperly allowed the testimony of a therapist. He asserted that the therapist was not properly an expert witness, and that the trial court erred in letting her serve as a conduit for the child’s testimony. He also asserted that those communications were privileged and should not have been allowed for that reason.
The appeals court first held that it was proper for the therapist to testify as an expert witness, since she gave the kind of expert testimony that was helpful to the trier of fact. The appeals court also held that the hearsay statements made by the child were properly part of the testimony, since this was the information on which the expert based her opinion. And even though statements made by a patient to a therapist are privileged, the court noted that this privilege can be waived by either parent. For this reason, the court held that the use of the expert testimony was proper.
The appeals court then turned to the merits of the father’s claim, that the final ruling was not supported by the evidence. The court noted that lower courts, who have the opportunity to hear the evidence, have a great deal of discretion in their rulings, and the case will be reversed only if the evidence preponderates against the ruling.
The trial court had ruled that the child was in a stable home, albeit not in a stable home location. It had therefore concluded that, even though some modifications were called for, the best interest of the child was not served by changing primary residential parents.
After reviewing the evidence, the appeals court concluded that the evidence did not preponderate against the lower court’s ruling. For that reason, it affirmed the lower court. However, it denied the mother’s request for attorney’s fees on appeal.
No. M2014-01082-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2015).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans.
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