Tennessee child custody modification case summary.
Benjamin McCurry v. Agness McCurry
The mother and father in this Washington County, Tennessee, case were married in 2016 and had one child in 2017. They separated the following year and divorced in 2019. The father was named the primary residential parent, but the mother was granted only limited supervised visitation due to the trial court’s concern over her mental health. A permanent parenting plan was later issued, but the father remained the primary residential parent. The mother moved to have the trial judge recused, but this motion was denied.
In 2020, the mother filed a petition to be named primary residential parent, but this motion was denied. Both parties asked for the other to be held in contempt, but both of these requests were denied.
In 2022, the mother filed another motion for contempt and change of custody. Her concerns centered around the father’s new relationship. The new girlfriend’s Facebook picture contained a picture of the father and son, and the mother argued that she did not give permission for this picture to be displayed. She was also concerned that the mother’s “house” was in a trailer park. The mother was also concerned that the girlfriend paid for a membership at a trampoline park, which the mother framed as an extracurricular activity done without the mother’s decision-making input.
A hearing was held, and the trial court held that the father had made no violations of the parenting plan. It noted, for example, that the trampoline park did not constitute and “extracurricular activity” requiring the mother’s input. It equated this with taking the child to a park, zoo, or other normal activity. It held that there was no material chance of circumstances, and denied the mother’s request. Acting as her own attorney, she then appealed to the Tennessee Court of Appeals. She raised more than 25 issues in her brief, but the appeals court noted that most of them had not been raised in the trial court. The only issues before the court were the contempt motion and the denial of the petition to change custody. The court therefore addressed those issues.
The appeals court, like the trial court, first noted that the mother had not been specific as to whether she sought civil contempt or criminal contempt. Both courts, therefore, treated it as a civil contempt case, and such a case focuses on whether the party had violated a court order. The mother pointed to a number of issues, such as allegedly abusive text messages. But the text message was the mother’s request to drop the child off at a different location, and the father refused to do so. The appeals court noted that he had no obligation to do so. In fact, he had even suggested another location. The trial court noted that the father was “bending over backwards to cooperate,” and the appeals court agreed.
The court then turned to the pictures of the son posted on Facebook. But both the trial court and the appellate court agreed that nothing in the parenting plan prevented this. In fact, the appeals court noted that since the photos were with the mother’s mother, it was a benign exchange.
The father had withdrawn the child from preschool, and the mother claimed that this was another violation. But the appeals court noted that the father had such authority, and the school had agreed that the child would be better off in a smaller group of children.
The appeals court then addressed that trampoline park, and the appeals court agreed with the lower court that this did not constitute an “extracurricular activity” over which the mother had decision-making authority.
The parenting plan called for the child to be brought up in the Christian faith, and the mother presented a photo of two hands forming a triangular shape. The mother alleged that this was a “Hindu symbol” and violation of the parenting plan. The trial court didn’t buy this, and the appeals court held that this ruling was a proper exercise of the trial court’s discretion.
After affirming the ruling on the contempt motion, the appeals court turned to the mother’s motion to change residential parents. The mother pointed to the girlfriend’s involvement with the child ask evidence of a material change of circumstances.
But the appeals court was quick to point out that there was no evidence that the child’s well-being was negatively affected. Therefore, it affirmed the lower court’s ruling.
The father requested damages for a frivolous appeal, but this request was denied. The mother was assessed the costs of appeal.
No. E2022-00635-COA-R3-CV (Tenn. Ct. App. Dec. 1, 2022).
See original opinion for exact language. Legal citations omitted.
To learn more, see Modifying Custody & Parenting Plans and our video, How is child custody determined in Tennessee?
See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.