Case Law Review - Analysis of In re Annia J.: Setting You Up for a Successful Change of Custody

January 28, 2012
By Mary Frances Parker on January 28, 2012 10:49 AM |

A recent Tennessee case, In re Annia J., illustrates how hard it can be to change a custody arrangement. If you want to change custody of your child, this is the number one thing you have to know: there must have been a material change that has taken place after the current plan was put in place and the parent wishing to change custody must show that these changes affect the child in a negative way. legal books.jpg

By no means is it impossible to change custody, but you must present the right evidence to convince a judge that there have been substantial, material changes that are affecting the child. Read the analysis of this recent case for an example of what proof is needed. If you believe you may have grounds for changing custody, contact our office today to set up a consultation and to discuss your case.

In this case, the Father brought an action to change custody of the minor child, requesting that he be made the primary residential parent. The juvenile court judge found a substantial and material change of circumstances and made the Father the primary residential parent. The Court of Appeals reversed, finding that there was not enough evidence to establish a material change had occurred or that these alleged changes negatively affected the child.

Below are the changes the Father claimed were affecting the child:
1. The child was present when the Mother was abused by her former boyfriend. The Court found there was not enough evidence to support that the child was present when this abuse occurred.

What does this mean for you? If you believe your child has witnessed domestic violence, you need to present proof that the child was actually present when these situations took place.

2. The Mother took the child to work with her on at least 2 occasions. The court stated that there was no proof this negatively affected the child.

3. The Mother's former boss watched the child while the Mother worked, and the Mother didn't provide snacks or food during this time. The Court found no reason to believe this negatively affected the child.

4. The Mother had moved residences numerous times - at least five to seven times in a five year period. The Court, however, found that there was no evidence of negative impact on the child, because the moves were all within the same county, and the child attended the same school during this time.

This does not mean that numerous residences might not negatively impact a child, but you will have to present evidence of how this instability is affecting the child in some way.

5. The child had behavioral issues at school. The Mother claimed this was the result of ADHD, but there was no medical proof that the child had been diagnosed with ADHD. The Court found that there was not enough evidence to show that the Mother took no steps to help her child's issues. In fact, by the time of this hearing, the child was making good grades and was well-adjusted.

6. The child had been several tardies and unexcused absences from school over a several year period. In 3rd grade, the child was tardy 31 times without an excuse. However, the Mother changed her work schedule to help with this issue, and there was no evidence that these tardies continued past the 3rd grade or that it negatively impacted the child's education.

What this point illustrates is that you need to act while these issues are current! Do not wait for two years, allowing a parent to remedy the situation. It also illustrates that you need to be prepared to have evidence of how absences and tardies affect the child's grades and school performance.

7. The Mother went into a classroom and confronted the Father's wife at the child's preschool. The Court found there was no evidence this affected the child because the child was not present.

8. The Mother interfered with the Father's ability to pay the child's medical bills in a timely manner. The Court found there was no evidence this affected the child.

9. The Mother didn't provide the child's school with information regarding the Father's rights. The Court found this was not the Mother's responsibility.

10. *** The most important allegation made by the Father was that the Mother deliberately interfered with the Father's relationship with the child. This is a very important issue when this occurs, but the trial court here failed to cite specific instances of interference. In fact, the record showed that the Father attended extracurricular events, and that the Mother invited the Father to attend a dance with the child.

The lesson here is this: Clients that want to prove interference with the parent-child relationship need to keep track of acts of interference. Go out and buy a calendar. Keep track of every time you are refused visitation with your child. Keep track of every phone call you are denied. Keep track of the other parent's threats to end your visitation. Take note of times that you are not informed about school events or medical appointments.

The best thing you can do to help your case is be prepared. When you talk with an attorney, have calendars, notes, text messages and voice mails. Bring all the proof you have that your child is struggling in school, that the other parent is interfering with your relationship with the child, that the child has been placed in an unsafe environment, etc. Document everything and do your homework, and you will set yourself up for success.

If you want to know whether you should seek a change of custody, contact Mary Frances Parker today to set up a free consultation.