TN Mom With Temper and Volatility Loses Custody of Kids

Tennessee post-divorce child custody case summary.

Mark Thomas Whitten v. Dana Nicole Willis Whitten

The mother and father in this Tennessee divorce case were divorced in 2007 in Maury County.  They had two children, a son born in 2005, and a daughter born in 2007.  At the time of the divorce, the father was a middle school teacher and coach and the wife was not employed.  The mother was named the primary residential parent, with the father having parenting time on alternating weekends and two hours per day twice a week.

The mother continued living in the marital home, and in 2009, the maternal grandmother also moved in.  The mother got a full-time job teaching, and in 2012, she enrolled the children in a private school.  The father opposed this decision, and wrote a letter to the school making clear that he would not be financially responsible.

The father continued teaching, and also trained to become an Evangelical Episcopal priest, and was ordained in 2012.  He remarried in 2010, and his parents bought him a three bedroom house.  He and his new wife had a son together in 2011.

After ordination, the father took a leave from his teaching job to start a church.  This decision proved to be a financial burden, and he fell behind on his child support.  He returned to teaching in 2014.

In 2013, the father filed a petition to modify the parenting plan.  He alleged that the mother interfered with his visitation and tried to alienate him from the children.  He also asked to have the mother held in criminal contempt for violations of the parenting plan.

There was a great deal of animosity between the parties, including an incident when the father’s parents had sent a get well card to one of the children, which included five dollars for ice cream.  The mother returned the card to them, along with an unpleasant letter.

The father detailed other incidents and testified how the mother’s actions sometimes caused the children to start crying.

After hearing all of the evidence, the trial court concluded that the mother was being overly protective and interfered with the father’s visitation.  While the trial court found unwillingness on the part of both parties to cooperate, the majority of the blame was placed on the mother.  The trial court called her confrontational and expressed concern with her temper and volatility.  The court recommended that the mother seek counseling.

The trial court held that this constituted a change of circumstances and named the father the primary residential parent.  Dissatisfied with this turn of events, the mother then appealed to the Tennessee Court of Appeals.

She first argued that the trial court had erred in allowing hearsay evidence.  At an incident at a school art show, the daughter had stated, “no mommy, don’t do this here.”  The trial court had allowed this out-of-court statement, and said that it “spoke volumes.”  The trial court had allowed the statement as an “excited utterance” exception to the hearsay rule.  The father argued, in addition, that since the statement was a command, it was not offered to prove the truth of any particular fact that was stated.  The appeals court agreed, and cited numerous cases holding that someone speaking a command is not hearsay, since they are not making any factual statements.

Turning to whether the parenting plan should have been modified, the appeals court noted that trial court’s, who can hear the evidence, have considerable discretion.  In this case, the appeals court carefully reviewed the record and held that the evidence supported the trial court’s determination.  For these reasons, the Court of Appeals affirmed the trial court, and assessed the costs of the appeal against the mother.

No. M2014-00645-COA-R3-CV (Tenn. Ct. App. June 18, 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.