Routinely the parent wanting the change will discuss the various factors and state with absolute certainty that things are different now and that they should have custody -- that the child or children would be better with them. And often they are right... and more often yet it makes no difference.
Don't get me wrong, you can persuade judges to order a change of custody, but getting the court to change custody is much harder than getting the court to award you custody in the first place.
This is because of a judicial doctrine called "res judicata", which means issues which have been decided before, or which should have been decided at the time of a prior decision or prior Agreed Order, will not be changed later in a new trial (they might me changed on appeal or if a court of appeal orders a new trial, but not otherwise). In other words, you get one bite at the apple, unless there has been a substantial and material change of circumstances.
Custody decrees that have become final are res judicata on the facts existing at the time of the decree. Nichols v. Nichols, 792 S.W.2d 713, 715 (1990). Therefore, to obtain a change of custody a petitioner must allege and prove that circumstances have changed since the prior order. Dodd v. Dodd, 737 S.W.2d 286, 290 (Tenn. App. 1987). Facts that could have been anticipated at the time of the former order may not be used to establish a change of circumstances. Hicks v. Hicks, 176 S.W.2d 371, 375 (1943).
In a proceeding to modify
a prior custody order, the party seeking a change of custody has the burden
of proving a material change in circumstances compelling enough to warrant
such a change. See Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.
App. 1991); see also T.C.A. § 36-6-101(a)(1)
(providing that trial court retains jurisdiction over custody orders subject
to such changes or modification as "exigencies" of case may require).
A change of circumstances warranting a modification of custody includes
"any material change of circumstances affecting the welfare of the child
or children" and requires a showing of "new facts or changed conditions
which could not be anticipated by the former decree." Dalton v. Dalton,
858 S.W.2d 324, 326 (Tenn. App. 1993). The trial court's finding
of a change of circumstances does not end the inquiry, however, because
the trial court's determination of custody still must be guided by its
consideration of the best interest of the child. Dantzler v. Dantzler,
665 S.W.2d 385, 387 (Tenn. App. 1983).
MATTER OF ASKEW v. DONOHO, ___ S.W.2d ___ (Tenn.App. 9-23-1998)
Page 1
Where a decree has been entered awarding custody of a child, the judicial system and the parties involved have an interest in the stability and predictability that comes from according the decision the status of a final judgment. Custody orders are res judicata upon the facts brought to the trial court's attention at the time the decision was made and are conclusive in a subsequent application to change custody unless some new fact has occurred which has altered the circumstances in a material way. Young v. Smith, 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Walker v. Walker, 656 S.W.2d 11, 16 (Tenn.Ct.App. 1983). A trial court may re-examine a custody decision upon the presentation of "facts and conditions which have emerged since the decree [or] new facts and conditions which were not determined or could not be anticipated by the decree." Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn.Ct.App. 1981). In order to modify custody after an initial determination has previously been made, the burden is placed upon the non-custodial party to prove a material change in circumstances. Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn.Ct.App. 1996). Accordingly, in this modification of custody case, the earlier June 1994 award of custody to Lewis is conclusive as between Donoho and Lewis absent a showing by Donoho of a material change in circumstances.
In order to modify custody as between two parents, the standard
of proof requires the non-custodial parent to establish changed circumstances
such that substantial harm to the child would result if custody was left
with the custodial parent. Wall v. Wall, 907 S.W.2d 829, 834 (Tenn.Ct.App.
1995).
STRZELECKI v. McGRIFF, ___ S.W.3d ___ (Tenn.App. 1-21-2000)
Page 1
The law is well established that the party relying on res
judicata has the burden of proving that the issue was actually litigated.
See Gregory v. Gregory, 803 S.W.2d 242, 244 (Tenn.Ct.App. 1990).
Where there is any uncertainty, the doctrine of res judicata does not apply.
See id.
NEWPORT v. NEWPORT, ___ S.W.2d ___ (Tenn.App. 11-24-1998)
Page 3
After a trial court has determined the custody which is in the
best interest of the child, that decree is "res judicata and is conclusive
in a subsequent application to change custody, unless some new fact has
occurred which has altered the circumstances in a material way so that
the welfare of the child requires a change in custody." Nichols v.
Nichols, 792 S.W.2d 713, 715-716 (Tenn. 1990). In a modification
proceeding, the trial court must find circumstances compelling a change
of custody and the burden in such a case is upon the non-custodial parent
to prove such change. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn.App.
1991).
In other words, if you could have brought it out when the case was in court before and didn't, you can't use that evidence to justify a change in custody, and if the new facts would show you to be a better parent when you return to court, the court may still leave the child with the other parent in order to avoid disrupting the status quo.
At the same time, despite the doctrine of res judicata, the Parenting Planning pilot project in the six counties involved will mean that any petition for a change will automatically go into mediation, where the dynamics of the entire process will be changed... and where the involvement of a mediator may well result in agreed modifications the judge would never order. My own prediction is that for at least the next few years, the existence of mediation will result in a dramatic increase in the number of Petitions To Modify immediately after mediation becomes compulsory. (The statute, TCA 36-6-409, is clear that if there is no agreement before the matter is tried, mediation is to be mandatory.)
What factual changes are enough to justify changing custody?
What is "enough" is always going to be determined on a case by case basis, but generally courts will require some change in the home of the custodial parent making it significantly less desirable for the child or children to be in that home than it was for the child or children to be placed there originally. This does not mean that the parent with the children must be found "unfit", but just that there has been a "substantial and material" change in circumstances, which translates into a deterioration of the home conditions. Courts will sometimes order a change in custody based only on improvements in the home of the parent seeking custody in a Petition To Modify, but this is far more unusual, and in fact is contrary to Tennessee law.
One thing that will clearly justify a change in custody is violence in the home of the parent having custody, regardless who is responsible for the domestic violence, even if the child does not actually witness any physical violence and is only exposed to "verbal abuse." Newport v. Newport, ___ S.W.2d ___ (Tenn.App. 11-24-1998).
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