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Child Visitation


Right to Visit Your Child

Below is selected text of a recent Tennessee Supreme Court decision that makes parental interference with the non-custodial parent's right to visit their child a basis to remove the child and place the child with the parent who had suffered the wrong.  This decision tracks the Constitutional Right to parent (notably laid out in the various decisions striking the "Grandparent Visitation Act"). It is now dangerous for custodial parents to deny child visits with the non-custodial parent for any reason.  The failure to not pay child support is also not a basis to deny visitation.

I have selected only a portion of this case for inclusion in this site.




February 4, 2003 Session


Appeal by Permission from the Court of Appeals

Chancery Court for Montgomery County

No. 95-11-0055 Carol Catalano, Chancellor


No. M2000-02101-SC-R11-CV - Filed June 3, 2003

We granted review to determine whether the Court of Appeals erred in determining that the appellant (father) in this post-divorce case failed to present evidence of a material change of circumstances justifying a change of custody of the parties' two minor children. The Chancellor granted a change in custody from the appellee (mother) after finding that there was a material change in circumstances that presented a substantial risk of harm to the children. A majority of the Court of Appeals reversed, holding that there was no material change of circumstances that presented a threat of substantial harm to the children. After reviewing the record and applying our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), we conclude that a material change of circumstances occurred after the initial custody determination and that the modification of custody was in the best interest of the children. Although the Chancellor and the Court of Appeals did not have the benefit of Kendrick in this case, and therefore applied an incorrect legal standard, we affirm the result reached by the Chancery Court. Accordingly, the judgment of the Court of Appeals is reversed, and the judgment of the Chancery Court is reinstated.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals


 . . . . (material omitted)

Our recent decision in Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002), resolves the issues before this Court. We held in Kendrick that the modification of a valid order of custody must be based on the "standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child?s best interests." Id. at 570 (quoting Blair v. Badenhope, 77 S.W.3d 137, 148 (Tenn. 2002)).

We clarified that this standard requires the trial court to engage in a two-step process to make its final custody determination. First, the court must determine whether a material change in circumstances has occurred after the initial custody determination. Although there are no bright-line rules for determining when such a change has occurred, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child's well-being in a meaningful way. Kendrick, 90 S.W.3d at 570; see also Blair, 77 S.W.3d at 150.

Second, after finding that a material change in circumstances has occurred, the trial court must determine whether modification of custody is in the child's best interests using the factors enumerated in Tennessee Code Annotated section 36-6-106 (2001). These factors include:

(1) The love, affection and emotional ties existing between the parents and child;

(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;

(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment . . . .;

(4) The stability of the family unit of the parents;

(5) The mental and physical health of the parents;

(6) The home, school and community record of the child;

(7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person . . . .;

(9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and

(10) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

Tenn. Code Ann. ยง 36-6-106.

In short, the statutory scheme and our decision in Kendrick provide a flexible framework within which a trial court may consider a number of factors in determining whether to modify a custody decree. Although evidence of substantial harm or harm to the child is certainly relevant to the trial court's determination, the analysis to be applied under Kendrick does not require a finding of harm or substantial harm to establish a material change in circumstances.

Accordingly, the Chancery Court and the Court of Appeals' majority applied an incorrect legal standard in determining whether a material change of circumstance had occurred in this case.  We believe, however, that the record on appeal and the findings of the Chancery Court are sufficient to apply the appropriate analysis and to determine whether appellant Combs met the applicable burden required for a change in the initial custody order.

First, the Chancery Court's finding that Combs established a material change in circumstances is supported by the record. The Chancellor made extensive findings and cited, among other factors, Cranston's deliberate pattern of consistent interference with Combs' court-ordered visitation rights, Cranston's interference in and monitoring of telephone conversations, Cranston's refusal to allow the children to speak with Combs on the telephone, Cranston's refusal to talk to Combs, Cranston's refusal to provide relevant information to Combs about the children, and Cranston's derogatory remarks about Combs in front of the children.  The Chancery Court also found that these factors created a substantial risk of harm to the children. Although such a finding was unnecessary under the appropriate standard, its finding that a material change of circumstances had been established was fully supported by the proof in the record. That is all that is required under the first prong of our analysis in Kendrick. Accordingly, we agree with the determination that a material change of circumstances occurred that affected the well-being of the children in a meaningful way. See Kendrick, 90 S.W.3d at 570.

Second, the Chancery Court's conclusion that a change of custody was in the best interest of the children is also supported by the record.

. . . . (Remainder of decision not cited)



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