Session January 22, 2015.
Appeal from the Juvenile Court for Jackson County Nos. 99-163, 4364-3-172 Tiffany Gipson, Judge.
Angelique P. Kane (on brief) and Brody Kane (at oral argument), Lebanon, Tennessee, for the appellant, David B.
Michael R. Giaimo and Randy S. Chaffin, Cookeville, Tennessee, for the appellee, Angela W.
W. Neal McBrayer, J., delivered the opinion of the Court, in which Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins J., joined.
W. NEAL McBRAYER, JUDGE.
I. Factual and Procedural Background
This case arises from a petition for the modification of a parenting arrangement. David B. ("Father") and Angela W. ("Mother") are the parents of a minor child, Jacob B. Although never married, Father's paternity was established by court order on October 8, 2002, when Jacob was four years old. At that time, a permanent parenting plan was entered designating Mother as Jacob's primary residential parent.
On May 16, 2012, Father filed a petition to modify custody. By this time, Father was married and lived with his wife and a stepson in Nashville, Tennessee. Father sought to be designated Jacob's primary residential parent and to be granted increased parenting time. Father's petition asserted that Jacob's changing desires with regard to his primary residential parent constituted a material change of circumstance justifying modification. He also asserted that Jacob had a strong interest in playing baseball and that, with Father, Jacob would be able to attend a private school that would be better for him both academically and athletically.
Mother responded by filing a motion to dismiss the petition on July 12, 2012. Mother's motion asserted that Father had failed to allege a material change of circumstance sufficient to allow for a change in custody arrangements. Father filed an amended petition to modify custody on October 1, 2012. The amended petition alleged that Mother subjected Jacob to "physical, emotional and verbal abuse." These alleged instances of abuse related to a number of arguments between Mother and Jacob. Father also alleged that Jacob felt like he was treated differently than his adopted siblings.
Since the entry of the permanent parenting plan, Mother began taking in foster children at her home in Cookeville, Tennessee. She had fostered between 16 and 18 children during the time that Jacob has lived with her and brought two children into her home on a more permanent basis. Many of these children suffered from personal or developmental issues. Father's amended petition alleged a strain in Jacob's relationship with Mother caused, at least in part, by her decision to bring these other children into her home.
Following an initial hearing at which the trial court spoke with Jacob in camera on December 17, 2012, the court entered an order keeping the permanent parenting plan in place but granting Father visitation with Jacob in the summer until the next hearing. A trial was held on July 17, 2013.
In his opening statement, Father's attorney outlined what he considered to be material changes of circumstance justifying a change in primary residential parent: (1) Jacob's deteriorating relationship with Mother; (2) the adoption of two other children; (3) Jacob's preference to live with Father; and (4) Mother's lack of parenting skills.
Father testified first. He believed that it would be in Jacob's best interest to live with him and attend a local private school where Jacob could focus on academics and baseball. This was part of an overarching narrative by Father, in which he alleged that he would be able to offer a superior support system to Jacob because of his greater financial resources, his ability to mentor Jacob as an athlete, and his marriage subsequent to the entry of the original parenting plan. Father also testified that Jacob had changed ...