Child Custody Modifications

When a Tennessee court is faced with adjudicating the issue of child custody, it will make a child custody determination awarding the physical and legal custody of the minor child(ren). Generally, the court’s child custody determination is set forth in a Permanent Parenting Plan, which is incorporated into a final judgment of the court.

Once a custody decision has been rendered, it is res judicata – that is, once a Tennessee court of competent jurisdiction renders a final judgment on the merits of a case, that judgment is conclusive between the parties to the suit as to all matters that were litigated or that could hav been litigated in that suit.

In the context of an initial child custody determination, once a Tennessee court of competent jurisdiction has rendered a final judgment as to the issue of custody, that custody decision (as between the parties to the case) is final regarding the facts before the court. If a parent is disappointed with the child custody determination, that parent may appeal the judgment of the court. The same parent cannot, however, relitigate the same facts in the trial court for a second time.

Nevertheless, even though a court’s child custody determination is res judicata as to the facts before the court at the time judgment is rendered, the court making the initial child custody determination generally retains continuing, exclusive jurisdiction to modify custody if circumstances change in the future. The issue of whether a Tennessee court that has made an initial child custody determination has lost its continuing, exclusive jurisdiction is often a very complex legal issue under the Uniform Child Custody Jurisdiction and Enforcement Act.

Under Tennessee law, if the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner (i.e., the party seeking the modification) must prove that there has been a material change in circumstances since the time the initial child custody decision was made, and that a reassessment of the previous child custody determination is warranted.

A material change of circumstances does not require a showing of a substantial risk of harm to the child, and may include, but is not limited to, failures to adhere to the Permanent Parenting Plan, or an order of custody and visitation, or circumstances that make the Permanent Parenting Plan no longer in the best interest of the child.

If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove a material change of circumstances affecting the child’s best interest. A material change of circumstances for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time. These needs may comprise the following:

• Changes relating to age;
• Changes in the parents' living or working conditions that significantly affect parenting;
• Failure to adhere to the parenting plan; or
• Other circumstances making a change in the residential parenting time in the best interest of the child.

In proceedings seeking a modification of a Permanent Parenting Plan, a proposed, modified parenting plan must be filed and served with the petition for modification, unless the modification sought pertains only to child support. Generally, continuing jurisdiction over custody lasts until the child turns eighteen years of age.

Therefore, even though custody determinations in Tennessee courts are generally encompassed within what are called “Permanent Parenting Plans,” in reality, these parenting plans are anything but permanent. Under Tennessee law, Permanent Parenting Plans are subject to subsequent modification upon a showing of a material change in circumstances, and, depending on the evidence presented and the nature of the material change in circumstances, the modification may result in anywhere from minor changes to a Permanent Parenting Plan to extremely significant changes – even changes in physical and/or legal custody from one parent to the other. Tennessee courts will generally also approve any changes to a Permanent Parenting Plan that are agreed upon by the parties.

The process of bringing and litigating a custody modification proceeding is complex, nuanced, and should not be attempted without the assistance of knowledgeable legal counsel. Moreover, a Tennessee court’s initial custody determination is often subject to modification (including, in some cases, significant modification). The outcome of a custody modification proceeding can be just as consequential as the outcome of an initial child custody determination on the lives of the children and the parents involved.

If you believe that there has been a material change in circumstances since the initial child custody determination was made in your case, you should seek the legal advice of an experienced family law attorney immediately. Contact a Nashville attorney with Cole Law today at (615) 490-6020 to schedule a consultation and learn about how Tennessee law pertaining to the modification of child custody may impact you.