A custody modification petition was filed involving E.J.M., born October 31, 1994, by her parents, Lee T. Myers (father) and Sandra Brown (mother), who were never married. A consent order established the mother as the primary residential parent in April 2002 when E.J.M. was seven. A dispute arose in summer 2002 regarding E.J.M.'s school enrollment, leading the mother to unilaterally place her in a private school against the father's wishes. The father petitioned for contempt when the mother did not comply with a court order to return E.J.M. to public school, subsequently requesting a change in custody. The trial court granted him temporary custody for the remainder of the school year but ultimately restored the mother as the primary residential parent, finding insufficient change in circumstances to justify a permanent custody change. The father appealed this decision, but the court affirmed the trial court's ruling. The case involved the parents' history of custody and support discussions, including previous legal modifications related to child support and visitation rights.
On August 14, 1996, Mother petitioned to modify a Juvenile Court order, claiming she lacked notice of the hearing and sought an increase in child support. On September 27, Father filed a contempt petition, alleging Mother's noncompliance with the visitation order. The court dismissed his contempt petition but increased child support to $716 per month and granted Father visitation every other weekend and Wednesdays. Following a two-year period of no litigation, on February 25, 1999, Mother again petitioned for increased child support, citing Father's income increase and his irregular visitation. Father acknowledged his income rise but denied visitation issues, claiming Mother was obstructing his access. The court raised his child support to $1,651, with $211 designated for an educational trust for E.J.M. On July 21, 1999, Father sought additional visitation, which the court approved, granting him visitation on specific weekends and during holidays.
Another two-year hiatus ensued until September 5, 2001, when Mother requested more child support and sought to hold Father in contempt for not establishing the educational trust. Father countered with a contempt petition against Mother for failing to comply with visitation orders. A hearing scheduled for October 18, 2001, proceeded without Mother's presence, resulting in the court temporarily awarding Father custody. This order was later set aside due to Mother's claim of lack of notice. An agreement was reached on January 29, 2002, establishing that Mother would remain the primary residential parent while Father gained increased parenting time and shared decision-making authority on significant issues concerning E.J.M. However, the agreement was short-lived, as Father filed an emergency petition for contempt and to modify the consent order shortly after its implementation.
Father alleged that Mother prevented him from exercising his overnight parenting time on February 7, 2002, which he was entitled to under their agreement. He claimed that Mother indicated she no longer supported his Thursday evening parenting time when he did not have weekend custody. Additionally, Father asserted that Mother refused to attend counseling with Mike Gooch and physically assaulted him on February 11, 2002, while also destroying a school project in front of E.J.M. and her classmates. Father argued that these actions constituted a material change in circumstances, justifying a request for him to be named the primary residential parent.
In response, on March 11, 2002, the Juvenile Court appointed Guardian Ad Litem Andrea Lazarini to represent E.J.M. Following her intervention, the parties reached a new agreement, which was incorporated into a comprehensive consent order on April 22, 2002. This order modified previous arrangements, allowing Father parenting time every other week from Wednesday after school until Monday morning, while maintaining holiday and vacation schedules from the January 29, 2002 order. The parties also agreed to participate in counseling with psychologist Dr. Peter Zinkus, who would oversee the scope and duration of the counseling, and to consult each other on major decisions regarding E.J.M.'s health and education, with Dr. Zinkus serving as the final arbiter in disputes.
Concerns about E.J.M.'s academic performance were discussed with Dr. Zinkus, noting her early admission to first grade due to Mother altering her birth certificate, an action Father was aware of but did not contest in court. E.J.M. struggled in second grade at Hanley Elementary, prompting discussions about her potential testing for attention deficit disorder, the possibility of moving to a private school, and repeating the second grade. Mother favored private school and repetition, citing financial constraints, while Dr. Zinkus supported the idea of private schooling but believed grade retention should depend on the school E.J.M. would attend. Father agreed on the private school but did not support retention or funding. Unable to reach consensus, Dr. Zinkus determined that E.J.M. would remain at Hanley Elementary for the 2002-2003 school year and advance to third grade. However, her third-grade teacher raised concerns about her focus and skills, leading Mother to have E.J.M. tested at Sacred Heart Catholic School, which recommended that she repeat second grade.
Mother informed Father of a test result and her belief that their child, E.J.M., should transfer to Sacred Heart for second grade. Father disagreed, refusing to pay the tuition, prompting Mother to enroll E.J.M. at Sacred Heart independently and without Dr. Zinkus's knowledge. In response, Father filed a petition in Juvenile Court for injunctive relief, claiming Mother violated a consent order by removing E.J.M. from Hanley Elementary. The court ordered a continuation of the case until September 4, 2002, and prohibited E.J.M.'s removal from Hanley without court permission. Father then filed an emergency petition on August 30, asserting that Mother disobeyed the court's orders and sought to modify custody, alleging a material change in circumstances. On September 4, the court granted Father temporary custody of E.J.M. and allowed Mother visitation every other weekend, although the order did not specify the reason. Subsequent orders and testimony revealed that the custody change was due to Mother's denial of Father's visitation rights and her inability to transport E.J.M. to school following recent surgery. The court mandated E.J.M. remain at Hanley Elementary, and Father arranged for additional educational support. A hearing was scheduled for October 3, 2002, during which the Guardian Ad Litem noted that both parents had previously agreed to consult Dr. Zinkus for educational decisions but could not reach a consensus, resulting in E.J.M. remaining at Hanley Elementary.
Mother violated a court order by unilaterally enrolling E.J.M. in Sacred Heart without required agreement or a decision from Dr. Zinkus. Despite her belief that the private school was in E.J.M.’s best interest, this action resulted in instability for the child. Guardian Ad Litem Lazarini noted that E.J.M. was progressing at Hanley Elementary and recommended she continue there while receiving tutoring, supporting the designation of Father as the primary residential parent. Following a hearing on October 3, 2002, where no transcript exists, the Juvenile Court Judge requested legal memoranda from both parties. On November 5, 2002, Father filed a contempt petition alleging Mother's interference with his parenting time and cancellation of appointments with Dr. Zinkus, arguing this warranted a change in custody.
Subsequent changes in legal representation occurred, with Melanie Taylor replacing Mother’s counsel and Linda Holmes succeeding Lazarini as Guardian Ad Litem. On April 7, 2003, Mother petitioned to regain temporary custody, claiming E.J.M. spent significant time with Father's family and that Father limited her involvement in E.J.M.'s education. The hearing was scheduled for June 10, 2003. Prior to this, Holmes submitted a report to the court, highlighting both parents' love for E.J.M. but noting Father's greater financial stability and his provision of a private tutor. She observed E.J.M.'s good academic performance and relationships with family members in Father's household, while criticizing Mother's actions regarding E.J.M.'s school enrollment and communication habits. Ultimately, Holmes concluded that Father should remain the primary residential parent due to his demonstrated consistency and stability.
Father was recommended as the primary residential parent, with Mother having parenting time four days biweekly and additional summer and holiday visitation. A hearing on June 10, 2003, before Juvenile Court Referee Cary Woods addressed Father’s petition for injunctive relief regarding the school enrollment of E.J.M. and the temporary custody arrangement. Referee Woods found no substantial change in circumstances warranting a modification of custody and recommended restoring Mother as the primary residential parent effective June 20, 2003, while outlining substantial parenting time for Father, including specific weekend and weekday arrangements, as well as ongoing joint counseling with Dr. Peter Zinkus to improve communication between the parents.
Father subsequently requested a hearing on June 30, 2003, and filed a petition for injunctive relief on August 14, 2003, claiming Mother was not communicating about E.J.M.’s school enrollment. Mother argued she was no longer bound by the previous consent order and that the decision on schooling was hers as the primary residential parent. After a hearing, Judge Woods recommended denying Father’s petition, which was approved by the Juvenile Court Judge.
On August 15, 2003, Father filed a second request for rehearing regarding this denial, combining it with his earlier request from June 30. Hearings were held on September 18, 23, and 25, 2003, where both parties, their Guardians Ad Litem, and additional witnesses provided testimony about the circumstances leading to the hearings and the parties' fitness to parent.
Lazarini was appointed after Father claimed that Mother violated a January 2002 consent order, emphasizing that her role was not to assess the parties' fitness. She facilitated an April 2002 consent order appointing Dr. Zinkus as the final decision-maker for E.J.M. Lazarini asserted that Mother's failure to consult Dr. Zinkus about E.J.M.’s school change breached this order and another from August 2002, which mandated E.J.M.’s re-enrollment at Hanley Elementary. Lazarini indicated that the Juvenile Court Referee temporarily awarded custody to Father due to Mother's recent surgery and the parties' poor communication. She recommended custody be granted to Father, as Mother's noncompliance endangered E.J.M.’s welfare.
Lazarini noted E.J.M. was thriving academically in third grade and receiving additional tutoring at Sylvan Learning Center but had not reviewed her grades or any tests indicating learning issues. Concerns were raised about E.J.M. being in a grade potentially beyond her maturity level, although Lazarini believed she should remain in third grade.
Father's private tutor, Tressa Lambert, testified that E.J.M. improved academically under her tutoring, attending sessions Monday through Thursday, and expressed disappointment at E.J.M. being held back in third grade, noting E.J.M.'s negative self-perception resulting from this. Lambert believed E.J.M. did not require remedial courses but needed motivation.
Ruby Payne, principal of Hanley Elementary, confirmed E.J.M.'s progress from second to third grade and supported her capability to advance to fourth grade. She noted Father's active involvement with the school as a community role model and contributor.
Patricia Harris, E.J.M.’s third grade teacher, testified that E.J.M. was a good student and did not require repeating the grade, noting her maturity improved by the second semester. Carolyn Crawford, an assistant principal, recounted an incident at school where E.J.M.’s parents had an altercation, witnessed by E.J.M. and others. In this incident, Mother confronted Father about a school project he was carrying, leading to Mother tearing up the project and discarding it, which visibly upset E.J.M. Following the incident, the principal assured both parents that E.J.M. would receive credit for her projects. Cynthia Brown, the guidance counselor, expressed concerns about the potential negative impact on E.J.M. if she were moved from the predominantly black Hanley Elementary to an all-white school, and noted that retaining her in third grade after already passing it could be psychologically harmful. Carol Myers, E.J.M.'s paternal grandmother, testified that E.J.M. was more outgoing and did not want to attend Sacred Heart or repeat third grade, citing a lack of social connections there. Grandmother indicated she was available to assist Father, who worked long hours. Mrs. Myers, Father’s wife, affirmed their family's close interactions and her supportive role with the children. Father testified that Mother had falsified E.J.M.'s birth certificate to enroll her a year early in school and subsequently unilaterally moved E.J.M. from Hanley without notifying him, leading to litigation and his eventual temporary custody, during which E.J.M. was placed back in third grade at Hanley.
Father sought tutoring for E.J.M. first at Sylvan Learning Center and then hired a private tutor. After Mother regained primary custody in June 2003, Father felt uncertain about his decision-making role but believed she needed to consult him and Dr. Zinkus regarding E.J.M.’s schooling. He expressed concerns about Mother's delays in returning E.J.M. after visitations and acknowledged mutual animosity, which intensified after his marriage three years prior. Father claimed that E.J.M. expressed a desire not to repeat third grade and was struggling academically, attributing some of her issues to Mother's forgery of E.J.M.'s birth certificate. He emphasized the need for stability in E.J.M.’s life and argued he could provide that better than Mother.
Father also mentioned his other child, Lee, Jr., who lived with his mother amicably. He described a disagreement over E.J.M.'s soccer participation, initially opposing it but later allowing it after consulting the Guardian Ad Litem. When asked if he would change E.J.M.'s school if he became the primary residential parent, he expressed a desire to work with her academically rather than necessarily transferring her from Sacred Heart, despite Dr. Zinkus’s recommendation for her to start the school year in third grade.
Mother testified that E.J.M. lived with her prior to Father's temporary custody in September 2002 and claimed that Father had minimal involvement in E.J.M.'s life before this. She noted that Grandmother often facilitated visits and asserted that Father had previously been reluctant to exercise visitation rights. Mother described hostile responses from Father regarding her requests for increased child support. She accused him of scheduling activities, like dance lessons, that conflicted with E.J.M.’s schedule and enrolling her in soccer against his wishes. Judge Lane remarked on the ongoing conflict between the parents, suggesting they were using E.J.M. to retaliate against each other and questioning how to resolve the situation.
Mother expressed a desire to collaborate with Father for the benefit of their child, E.J.M., and acknowledged her past animosity which she claimed to have resolved. She recognized that both she and Father had not consistently adhered to visitation schedules. A significant incident involved Mother destroying a school project in E.J.M.'s presence out of anger after Father refused to show her a project he claimed was E.J.M.'s. Mother later admitted that her reaction was inappropriate and noted that the incident happened almost two years before the hearing, with no similar behavior since.
Mother recounted issues regarding E.J.M.'s school placement, stating that Father initially opposed E.J.M.'s enrollment at Hanley Elementary. After E.J.M. completed second grade there, discussions with Dr. Zinkus led to a recommendation for E.J.M. to repeat second grade at a more challenging school. Due to financial disagreements, E.J.M. continued in third grade at Hanley. Concerned about E.J.M.'s lack of progress, Mother decided to transfer her to Sacred Heart, funding the tuition herself, believing it was in E.J.M.'s best interest and consistent with court orders once the financial barrier was removed.
Mother acknowledged that she should have sought written approval from Dr. Zinkus for the transfer. She also accepted that the custody order favoring Father was partly a consequence of her prior noncompliance with court orders, despite her claims about her recovery from surgery at the time.
Mother expressed regret regarding past actions and confirmed her compliance with the Court’s orders since then, pledging to continue doing so. She facilitates communication between E.J.M. and Father when E.J.M. is in her care, although she has faced difficulties reaching E.J.M. at Father's home due to a full answering machine. Following testing at the start of the 2003-2004 school year, Mother transferred E.J.M. to Sacred Heart private school, as her skills were insufficient for fourth grade, with testing indicating she was below third grade level. Mother consulted with Dr. Zinkus regarding the transfer but did not communicate with Father about it, claiming her decisions were made in E.J.M.’s best interest. Since moving to Sacred Heart, E.J.M. has shown progress but still struggles with math, prompting Mother to work with her using purchased educational materials. Witnesses testified to Mother’s dedication to E.J.M., noting her flexible work hours and the close relationship they share. The substitute Guardian Ad Litem, Holmes, testified against the decision to restore Mother as the primary residential parent, citing Father's more consistent reliability and questioning the rationale behind the custody change without a substantial change in circumstances. Holmes also expressed concern over her lack of knowledge regarding E.J.M.’s school placement during the transition period.
Judge Woods clarified that the June 23, 2003 order superseded the April 2002 consent order, which had designated Dr. Zinkus as the decision-maker in disputes, rendering the earlier provision obsolete. Holmes learned from E.J.M. that she was upset about potentially being held back a grade, believing she had already passed third grade. Holmes expressed concerns that “demoting” E.J.M. would be detrimental. Vacancies arose at Sacred Heart school, prompting Mother to seek E.J.M.'s transfer based on an assessment from St. Ann’s. Holmes requested that E.J.M. not undergo further testing, citing potential harm, despite initial assessments indicating she was unprepared for fourth grade and Dr. Zinkus advising she should repeat a grade.
Holmes lobbied the principal and guidance counselor at Sacred Heart to place E.J.M. in the fourth grade, leading to an agreement to observe her before finalizing her placement. After weeks, Sacred Heart determined E.J.M. was not performing at grade level, resulting in her being placed back in third grade. Holmes testified that neither Father nor Grandmother supported E.J.M.’s placement in third grade, although she received conflicting reports indicating E.J.M. had adjusted and made friends. Despite criticizing Mother for altering E.J.M.’s birth certificate to start her early, Holmes remained concerned about E.J.M.’s distress over being held back and considered asking Sacred Heart for a split class arrangement.
During the hearings, Judge Lane noted Dr. Zinkus's opinion regarding E.J.M.'s appropriate grade level and highlighted the need for careful consideration in her schooling. The Juvenile Court Judge acknowledged past interference by Mother with Father’s parenting time, and remarked on the ongoing issues regarding E.J.M.'s educational needs, suggesting Mother's involvement was motivated by genuine concern for the child's schooling.
Father was aware of issues regarding the child's education, and both parents attempted to address these concerns. The court expressed that Mother's worries about the child's education did not justify revoking her custody; interference with visitation did not warrant such a drastic measure at this stage. The judge noted that communication between the parents was poor, which necessitated allowing Mother to make educational decisions while still involving Father in school matters. The judge acknowledged uncertainty regarding the child's appropriate grade placement and deferred to educational professionals.
Mother was warned that continued interference with Father's visitation could lead to loss of custody, but the judge determined the situation had not escalated to that point. Consequently, the Juvenile Court upheld the prior ruling by Judge Woods, affirming Mother's status as the primary residential parent. Father appealed, contending that the court erred in this designation and in stripping him of decision-making authority established in an earlier consent order. He argued that no material change in circumstances justified this shift in custody.
In reviewing the case, the appellate court will assess the Juvenile Court’s findings de novo, presuming them correct unless contradicted by evidence. The court emphasized that custody decisions involve broad discretion and must consider numerous factors, with the trial judge's observations of witness credibility playing a crucial role. A custody determination will only be reversed if there is an abuse of discretion. Custody orders are final and can only be modified if a significant change in circumstances is shown to be in the child's best interest.
A material change in circumstances is necessary for modifying custody arrangements post-initial determination. Key factors for establishing such a change include: the change must occur after the custody order, it should not have been anticipated at the order's entry, and it must significantly impact the child's well-being. A parent's change in circumstances can qualify as material if it affects the child positively or negatively. Once a material change is identified, the focus shifts to whether the custody modification serves the child's best interest, guided by Tennessee law.
A critical issue arises about which party bears the burden of proof regarding changes in circumstances: whether it is the father, who seeks a change from a prior consent order, or the mother, who seeks to revert to custody after a temporary order. The father argues that precedent indicates that mothers must demonstrate such changes when custody is modified after a temporary arrangement. Specifically, the Dailey case illustrates that even temporary custody is subject to modification based on material changes, and the mother in that case was required to prove such a change to regain custody. This principle reinforces the understanding that all custody arrangements are inherently temporary and can be modified as circumstances change.
A temporary order of custody does not change the burden of proof for the custodial parent, as established in Tennessee case law. In *Warren v. Warren*, the trial court granted the father temporary custody of the child after the mother intended to relocate to Illinois, but later determined that the child should reside with the mother. The father contended that the mother should have demonstrated a material change in circumstances to modify custody. The appellate court clarified that temporary custody orders are interim decisions and do not require the same burden of proof as final custody orders. The distinction between temporary and final orders is critical, as temporary arrangements may be made without complete information or deliberation regarding the child's welfare. Subsequent cases, including *Spatafore*, *Phillips*, *Placencia*, and *Gorski*, reinforce that the burden to show a change in circumstances lies with the non-custodial parent following a final custody decree, which is treated as res judicata. Thus, the court upheld that the mother was not obligated to prove a material change in circumstances after the father was granted temporary custody.
When a petition for custody modification is filed, any temporary custody changes are provisional and lack res judicata protections. Such alterations should only occur when there is clear and convincing evidence of potential harm to the child and should be treated as preliminary until a full hearing is held. In this case, the Juvenile Court Judge correctly determined that the Father bore the burden of proving a material change in circumstances since the April 2002 consent order that designated the Mother as the primary residential parent.
The Father contended that circumstances had materially changed, arguing that his temporary custody provided E.J.M. with the only stability in her life, citing the Mother's repeated changes of schools without his consent, her non-compliance with court orders, and interference with his relationship with E.J.M. He believed these factors justified a change in custody.
In contrast, the Mother claimed that there had been no material change since the order. She acknowledged not seeking the Father's consent for changing schools but argued it was in E.J.M.’s best interests due to academic struggles. She pointed out that the original Guardian Ad Litem found no vindictive intent in her actions and asserted that both parents had not strictly adhered to visitation terms.
The Juvenile Court concluded that the evidence did not sufficiently demonstrate that the Mother’s actions warranted a custody change, indicating that any changes in circumstances were not significant enough to alter the existing custody arrangement. The determination of whether a change in circumstances is material relies on unique case facts, with key considerations including the timing of changes, their unexpected nature, and their impact on the child's well-being.
The trial court's credibility determinations must be respected while assessing whether the evidence contradicts its findings or indicates an abuse of discretion. The analysis centers on changes since the April 2002 consent order that designated Mother as the primary residential parent. Father's August 30, 2002 petition for contempt and modification of custody alleged that Mother violated the consent order by withdrawing E.J.M. from Hanley Elementary against Dr. Zinkus's recommendation and failing to comply with a Juvenile Court order to return the child to that school. Father argued that Mother's actions demonstrate a material change in circumstances and a disregard for the court's authority and the child's best interests.
Despite Father’s burden to prove such a change, the court recognizes that events have progressed during the custody dispute. Father's temporary custody of E.J.M. for approximately ten months showed him as a loving parent, which could shift momentum toward permanent custody. Notably, Mother's removal as the primary caregiver stemmed partly from her noncompliance with court orders regarding E.J.M.’s schooling.
Case law establishes that a child's removal from a custodial parent cannot serve as a punitive measure for disobedience of court orders. Custody decisions should prioritize the child's best interests rather than penalizing a parent. However, actions by a custodial parent that disrupt the non-custodial parent's relationship with the child may constitute a material change in circumstances, as established in relevant case precedents.
The trial court granted custody to the father, citing the mother's obstruction of the father-child relationship and her failure to recognize its significance. The appellate court affirmed this decision, emphasizing the importance of the non-custodial parent's relationship for the child's well-being. A custodial parent's failure to comply with visitation orders can constitute a material change in circumstances justifying a custody modification.
Evidence showed that the mother violated Juvenile Court orders regarding the child, E.J.M.'s education, including her premature school enrollment, which led to academic struggles. Despite this, the trial court determined the mother's actions were motivated by genuine concern for E.J.M.’s education, rather than vindictiveness towards the father. The court found no error in this credibility assessment, concluding that the mother's educational decisions did not harm the child.
The judge noted that while transitions between schools affected E.J.M., they largely stemmed from the parents' disputes. Punishing the mother for not adhering to consent order procedures without proving harm to the child was deemed impermissible. Consequently, the court held that the mother's noncompliance did not constitute a material change in circumstances warranting custody change. The disagreement over E.J.M.'s grade placement was acknowledged as a legitimate point of contention, with the father's arguments supported by educator testimonies and evidence of E.J.M.'s distress regarding academic retention.
The Juvenile Court Judge emphasized that the court's role was not to decide the appropriate grade for E.J.M., but to determine who should make that decision. In a November 2002 contempt petition, Father claimed that custody should be altered due to Mother's failure to return E.J.M. on one occasion and her missed appointments with Dr. Zinkus. Father argued that these issues collectively warranted a custody change. However, the court concluded that Mother's actions did not constitute sufficient grounds for a custody modification. Although Father could be seen as a suitable primary residential parent, the court favored maintaining existing custody arrangements for continuity, noting that Mother had been E.J.M.'s primary caregiver for nearly eight years prior to temporary custody being granted to Father in September 2002. The court found no material change in circumstances since the April 2002 order that would necessitate altering custody from Mother to Father.
Additionally, Father contended that the trial court improperly modified the prior consent order by removing his decision-making authority regarding E.J.M. He argued that Mother did not show a significant change in circumstances to justify this change. The June 2002 order, which restored Mother as the primary residential parent, mandated joint counseling with Dr. Zinkus but lacked a provision granting him final authority in disputes. The court acknowledged the difficulty of the situation, recognizing both parents as fit yet unable to cooperate for E.J.M.'s benefit. The judge expressed frustration over the ongoing inability of the parents to reach agreements through counseling, ultimately deciding to grant Mother authority over E.J.M.'s educational placement to resolve the impasse.
Both parties are equally problematic in their inability to reach an agreement regarding their child, E.J.M., despite consultation with Dr. Zinkus. The Juvenile Court found that their efforts at joint decision-making were unsuccessful, highlighting a significant power struggle that adversely affected the child. Although the Father aims to act in E.J.M.'s best interest, the court determined that the ongoing conflicts necessitate a change in decision-making authority. Consequently, the Mother, as the primary residential parent, is granted final decision-making authority. Both parties must continue to consult with Dr. Zinkus to improve their communication. Should the Mother fail to comply with this requirement, the court can address the matter at its discretion. The trial court's decision is affirmed, with costs on appeal assigned to Appellant Lee T. Myers and his surety, with execution permitted if necessary.
