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Appellate Court Rules Foul Language Around Children Doesn’t Constitute Material Change Of Circumstances

In Tennessee, in order to modify a parenting plan, per T.C.A. 36-6-101(a)(2)(b), the Court applies a two-part analysis: The court must find that both a material change of circumstances has occurred and a change of custody is in the child’s best interests.

Per the statute, if the issue before the Court is a modification of prior court decree as it relates to custody/parenting time, the party bringing suit must prove by a preponderance of the evidence a material change in circumstance has occurred. The burden of proof is on the party seeking modification to establish that there has been a material change of circumstances. There are several factors to consider when making this determination of whether the change occurred after the entry of the order to be modified, whether the asserted change was known or reasonably anticipated at the time of the original order’s entry, and whether the change affects the child’s well-being in a meaningful way.

In John Wayne McDonald v. Jamie Rhea McDonald Bunnell, the issue before the court was if the use of foul language and racial slurs around the Mother and Father’s two children by their Stepfather constituted a material change of circumstances and therefore warranted a modification of the parenting plan by changing the primary residential parent from the Mother to the Father.

The facts of the case are John Wayne McDonald and Jamie Rhea McDonald Bunnell’s marriage produced two children before the parties divorced in 2012. The permanent parenting plan drawn up awarded the Mother the primary residential parent. When the Mother subsequently remarried and relocated to Cookeville, TN with the children and their Stepfather, the Father filed a petition to modify the existing parenting plan and asked the Court to designate him the children’s primary residential parent. The Mother properly filed a petition to relocate and modify the parenting plan but the Father was concerned by the behavior of the children’s Stepfather, arguing his foul language constituted a material change in circumstance. The Father asserted a modification would be in the children’s best interest. The Father presented evidence to the trial court showing that that Stepfather used foul language around the children and had referred to them using a racial slur, both of which the Mother and Stepfather conceded. However, the trial court ruled that Stepfather’s behavior, though “distasteful and ill-advised” was not enough to rise to the level of a material change of circumstance. The Father appealed raising only one issue: Whether the trial court erred in finding that Father failed to establish a material change in circumstance.

The Court of Appeals of Tennessee At Nashville found the Stepfather’s use of offensive language to be “misguided and unadvisable,” but the trial court’s injunction prohibiting foul language around the children, along with the lower court’s order that Mother and Stepfather seek family counseling was sufficient to ensure the children’s continued well-being. Thus, the Court ruled that the father did not prove by a preponderance of the evidence that the Stepfather’s behavior constituted a material change of circumstance and therefore the Mother remained the children’s primary residential parent.

This does not mean that foul language at or around children may never be a material change in circumstances but simply means that in this case it was not. Therefore, if your former spouse if attempting to modify the adjudicated parenting plan and/or primary residential parent citing a change in material change in circumstance that rises to the level of effecting change in your children’s wellbeing, contact attorney Jim Widrig or any of the attorneys at Widrig Law PLLC to schedule a consultation. Our phone number is 615-417-7800

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