Modifying Parenting Time Requires Addressing Best Interest of Children

Tennessee child custody modification case summary.

Una P. Irvin v. Ernest J. Irvin, II

The mother and father in this Montgomery County, Tennessee, case were the parents of two children and were divorced in 2010.  The mother was named the primary residential parent.  After two appeals, the parenting plan was finalized, and the father was awarded 114 days of parenting time per year.  At the time, the mother lived in Clarksville, Tennessee, and the father resided in Alabama.  Therefore, most of the father’s parenting time took place during the children’s summer vacation.  The father, who was in the military, relocated several times, but the original parenting schedule was followed.

In 2015, the father made a petition to modify the parenting plan.  He asked to be named the primary residential parent, and cited various instances of alleged parental interference and alienation by the mother.

The mother made a counter-petition.  She denied the father’s allegations and also asked to modify the schedule to comply with the children’s extracurricular activities.  She cited as grounds the father’s relocation to Florida and additional extracurricular activities.  During this time, the father also filed an emergency motion, alleging that the daughter feared her stepfather.

In 2016, a hearing was held before Judge Jill Bartee Ayers.  The daughter, who was then 14, testified at the hearing.  She testified that she thought the stepfather had an anger problem and was mad all the time.

After hearing the testimony, the trial court denied the father’s motion for change of primary residential parent, but agreed with the mother that there had been a material change of circumstances because of the move to Florida.  The judge concluded that a new parenting plan was warranted, reducing the father’s parenting time to 90 days.  However, she failed to address the issue of whether this change would be in the children’s best interest.

The father then appealed to the Tennessee Court of Appeals.  The appeals court first noted that change of custody involves a two-step analysis.  First, there must be a material change of circumstances.  If there is, then the court must determine whether a change would be in the child’s best interest.

The appeals court first agreed that there had been a change of circumstances.  The father’s move from Florida to Alabama meant that the children had to fly between residences.  In the past, the parents could drive and meet halfway.  And because the children had more extracurricular activities, the existing plan had been unworkable.

The appeals court examined the record and realized that the lower court had made a best-interest analysis regarding change of primary residential parent.  However, the court had not looked into the specific issue of whether the change in schedule was in the children’s best interest.  It concluded that this was error, because the analysis must be done with respect to that specific issue.  For this reason, it found it necessary to vacate that portion of the lower court’s order.

After discussing attorney’s fees, the Court of Appeals remanded the case for a determination of the children’s best interest.

No. M2016-02540-COA-R3-CV (Tenn. Ct. App. Jan. 8, 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.