Child Custody: Modification
For a lot of parents, there is nothing more important in life than their children. Thus, there is also nothing more painful for these parents than a custody order being handed down by a Tennessee court that does not allow them to spend as much time with their children as they feel is appropriate. These parents may want to try to modify the custody orders but have no idea how to do so. This begs the question: “When will a Tennessee court modify a child custody order?”
The short answer is that the court will modify a child custody order when there has been a “material change in circumstances” affecting the child that necessitates modification of the order after the initial order has been handed down. The burden to prove that there has been such a material change is placed on the party challenging the initial custody determination. The challenging party will have to prove both that a material change of circumstances has occurred and that a change to the current custody order is in the child’s best interest. “Material change” does not necessarily mean that the child has to be at a substantial risk of harm under the new circumstances; rather, it simply means that some facts or circumstances relating to custody of the child have changed so that it becomes necessary to change the initial custody determination.
Such developments could include changes in living arrangements, inability of one party to follow an agreed parenting plan, new indicia of abuse by a custodial party, etc. A skilled East Tennessee child custody attorney who has years of experience handling modification of orders is usually sought in such situations.
Anything that would tend to prove that the best interest of the child would be better served by modifying the custody determination can be used to challenge the current custody order, but it must be substantial as Tennessee courts favor stability and will not upset the current custody arrangement without sufficiently good cause (see Taylor v. Taylor).
Parents who desire to modify custody orders need to be realistic about what their chances are of getting such orders modified. Some are under the impression that you can just walk into the judge’s chambers, tell them the situation, and walk out with a modification of the custody order, but that is not the case. It is also important to realize that what to you seems like a “material change” in your child’s circumstance may not be considered so by the court. For example, if Husband and Wife are awarded joint custody and Wife begins to live with another person that Husband may not care for, this will seem to Husband like a material change in circumstances. However, the court will not automatically consider this to be a material change if it does not substantially alter the child’s life in some manner. Also, assuming it is a material change, it may not be such that it warrants altering the current custody arrangement to serve the child’s best interest. Getting a custody order modified is a tall task, and parents seeking to do so should be aware of the substantial burden of proof inherent in custody modifications.
Sources: Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn. 1993); T.C.A. section 36-6-101.
