TN Mom’s Travel Schedule Did Not Require Change In Primary Residential Parent

Tennessee child custody modification case summary defining changed circumstances.

Deborah Miller Gentile v. Michael Charles Gentile

The mother and father in this Tennessee custody modification case were divorced in 2005.  The mother was named the primary residential parent of their daughter, who was born in 2005, and the father was awarded 100 days of parenting time, which he exercised every other weekend during the school year and on certain holidays.  In addition, the father received three weeks of parenting time in the summer.

The father made a petition to modify the parenting plan, and a hearing was held in 2014.  The father worked as a consultant for Nissan in Tennessee.  The mother was an independent representative in the children’s apparel and gift business, and her job involved travel.  The parenting plan included a right of first refusal, under which the other parent would be offered parenting time if one parent was going to be away for more than 48 hours.  The father alleged that this provision had been violated a number of times.  In particular, the father used the mother’s cell phone records to show times she had been out of town.  In addition, he pointed to a number of out-of-town trade shows where the mother had been listed as a presenter.

The father also argued that the mother had interfered with phone access with the daughter, and had not maintained health insurance as required by the divorce decree.  He also had concerns about her school attendance.

After hearing the evidence, the trial court did make some minor changes to the parenting schedule.  But it found that there had not been a material change of circumstances warranting a change in the primary residential parent.  Dissatisfied with this ruling, the father appealed to the Tennessee Court of Appeals.

The appeals court first noted that the party seeking a change has the burden of proof in showing that there had been a material change of circumstances.  The father argued that the trial court had applied the wrong standard, and pointed to statements where the trial court appeared to be applying a test of whether there had been substantial harm to the child, which the father argued was not the correct standard.

While the appeals court agreed to a certain extent, it also pointed out that for a change, the change in circumstances must affect the child in a meaningful way.  The appeals court took a close look at the evidence and, while conceding that there had been some changes, agreed with the trial court that these had not had a major effect on the child.

Even though the changes were not great enough to warrant a change of residential parent, the appeals court agreed that they might have been sufficient to warrant a change in the parenting schedule.  While the trial court had made some changes, it had never expressly ruled that the changes were required in the child’s best interests.  Therefore, it remanded the case to the lower court to make this determination, and to make any changes in parenting time that would be warranted because of the child’s best interests.

For this reason, it sent the case back to the trial court to make the required determination.

No. M2015-00378-COA-R3-CV (Tenn. Ct. App. Dec. 23, 2015).

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.