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What Justifies a Change in Custody?


A recent case coming out of the Circuit Court for Williamson County serves as a primer on Tennessee law about when it is appropriate to alter custody arrangements.  In Robinson v. Robinson, 2015 WL 1259265 (Tenn. Ct. App., March 16, 2015), Father sought to be designated the primary residential parent after a couple earlier modifications to the parenting plan.  Father, who lived in a different city than the Mother, claimed the change was necessary to further his son's career as a competitive swimmer.  The trial judge agreed and Mother appealed.

The Court of Appeals stated the decision as to whether a change in custody should be made starts with these two questions: (1) Has a material change in circumstances occurred since the original determination and (2) Is a change in custody in the child's best interest?  The burden of convincing the trial court that the answers to these two questions are "yes" lies with the party seeking the change.  In other words, a change of custody case starts with a presumption the current custody Order is correct.  The Court also emphasized in a lengthy footnote that, when considering a change in custody, and not simply a modification of the parenting schedule, the party seeking the change must convince the trial court that the facts justifying the sought after change could not have been anticipated at the time the current Order was entered.

There is no "bright line" for determining when a change is material.  This will largely be left to the discretion of the trial judge who must determine whether the change in circumstances affects the child in a meaningful way.  If the trial judge concludes there has been a material change, the appellate court will be reluctant to reverse the trial judge unless there is strong evidence to the contrary.

In determining whether a change is in the child's best interest, the Court of Appeals directed trial courts to look at the 15 factors set out in T.C.A. § 36-6-106(a).  A child's preference is one of the factors and, in this case, the high school age child expressed a preference to live with Father and the trial court gave this factor additional weight.  The Court of Appeals said it was not a mistake for the trial court to do this when there is no evidence the child is being manipulated by a parent and due consideration is given to all applicable factors found in the statute.

This opinion re-emphasizes the importance of winning at the trial court level if you are the party seeking a change in custody.  The Court of Appeals will only reverse the trial court's ruling if the Record clearly shows the trial court did not weigh the evidence properly or reached incorrect conclusions about the law that may have led to an incorrect outcome.