Enforcing and Modifying a Tennessee Parenting Plan
From The Mid-South Divorce Guide, chapters 24 through 27, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.
Questions this page answers
- What can I do if my ex won’t follow the parenting plan?
- What is contempt of court in a custody case?
- How do I modify a parenting plan in Tennessee?
- What is a material change in circumstances?
When a Parent Won’t Follow
the Plan
A parenting plan is a court order. Violating it is contempt.
What to do
Document everything. Dates, times, what happened, in
a contemporaneous log. Not a diary of your feelings. A log of facts. On
March 3 the exchange was scheduled for 6:00 p.m. and he arrived at 7:40
p.m. with no notice. That is useful. He is always late is not.
Keep your communications clean. Assume a judge will
read every text you send. Write like a judge is reading it, because one
might be. Short, factual, about the children, no editorializing.
Co-parenting apps that create a permanent record are worth considering,
and courts sometimes order them.
Follow the plan yourself, exactly. Even when they do
not. Especially when they do not. The parent with clean hands has all
the leverage. The moment you retaliate, the case becomes about both of
you, and you have given away the only advantage you had.
Do not withhold the children over money and do not withhold
money over the children. Parenting time and support are
separate obligations. Self-help is contempt.
Tell your lawyer early. A pattern documented over
months is a case. A single incident you call about the day it happens is
usually not worth filing over, and your lawyer can tell you which one
you have.
What the court can do
Find the violating parent in contempt. Award make-up parenting time.
Modify the plan. Award attorney’s fees under section 36-5-103(c). In
serious and repeated cases, order jail.
What
the court will probably actually do the first time
Let me set your expectations, because clients walk in expecting the
hammer and are disappointed when it does not fall.
Think about your own child and a messy bedroom.
You walk past, you look in, you tell them to pick it up. You come
back five minutes later and nothing has moved. Now you raise your voice.
You come back a third time and it is still sitting there, and now there
is a real blow up and somebody is grounded and a phone is getting taken
away. The consequences stacked because the behavior kept going.
But run it differently. You walk past, you tell them to pick up the
room, and they look you dead in the eye and flip you off. You are not
doing the three step escalation. You went straight to the blow up, and
you were right to.
Judges work the same way. A first infraction that looks like
carelessness, or a misunderstanding, or one bad weekend, generally draws
a warning and an instruction to knock it off. The second one draws
something with teeth. By the third, a judge who has now spent three
hearings on the same problem is done being patient, and that is when fee
awards and make-up time and real consequences show up.
But if the very first violation is flagrant, if it is contemptuous on
its face, if a parent simply refuses to hand over the children or takes
them out of state or ignores the order entirely, the court can and does
come down hard immediately. Nobody is entitled to three free ones.
So two things follow from that. Do not expect the world to end over a
first offense by your co-parent, because it usually will not. And do not
treat your own first offense as a freebie, because whether it is depends
entirely on how it looks.
The honest part
Enforcement is slow and it costs money, and the remedy is often less
satisfying than the effort. That is a real limitation of the system and
I would rather you hear it from me now.
Which is the argument for spending the effort on a clear, specific,
airtight plan on the front end. An ambiguous plan gives a difficult
person room to operate. A specific one does not.
Modifying a Parenting Plan
Life changes. Plans can change with it, but not easily and not
automatically.
Two different standards
To change the primary residential parent you
generally must show a material change in circumstances
affecting the child’s best interest, and then that the change of primary
residential parent is in the child’s best interest. This is a real
burden. Courts value stability and are reluctant to move a child who is
doing fine.
To change the residential schedule without changing
the primary
residential parent, the standard is lower. A material change in
circumstances is still required, but the threshold is a lesser one,
reflecting that adjusting a schedule is less disruptive than moving a
child’s home.
Ask your lawyer which one you are asking for, because it changes what
you have to prove.
What counts as a material
change
A parent’s relocation. A significant change in a parent’s work
schedule. The child’s needs changing with age. A parent’s substance
abuse, mental health crisis, or incarceration. A dangerous person in the
home. A persistent failure to follow the existing plan.
What generally does not count. Your ex has a new partner and you do
not like them. Your ex is not parenting the way you would. The children
complained about a rule at the other house. Ordinary friction.
The honest advice
Most people who want to modify a parenting plan want to modify it for
reasons a court will not act on. That is not me being dismissive. It is
me telling you what the standard is before you spend fifteen thousand
dollars discovering it.
Two more things to weigh. Under section 36-5-103(c), if you file and
lose, you can be ordered to pay the other parent’s attorney’s fees. And
a modification action reopens everything, which means the other parent
can counter-petition for changes you never wanted on the table.
Get an honest read on your facts before you file. A good lawyer will
tell you when you do not have it, and that conversation is worth what it
costs.
Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)
Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.