C.W.H. v. L.A.S., E2015-01498-COA-R3-JV

Background

Parents (unmarried) entered an agreed long-distance parenting plan in 2011 naming Mother primary residential parent (Mother: 221 days/year).
In 2012–2013 parents adjusted the plan by agreement; shortly after the March 1, 2013 order Father learned Mother had worked as a licensed prostitute in Nevada beginning June 2012.
Father filed an emergency custody/modification motion (March 12, 2013); juvenile court magistrate and then trial court designated Father primary residential parent and reduced Mother’s parenting time to 90 days/year.
This Court vacated the first trial-court order for lack of an explicit best‑interest analysis and remanded for findings; on remand the trial court incorporated prior findings, performed a best‑interest analysis, and again awarded primary custody to Father.
On appeal, this Court reviewed whether (1) a material change in circumstances was proven (grounds asserted: Mother’s deceit, Mother’s prostitution, Mother’s hostility toward Father/stepmother) and (2) whether the best‑interest factors supported changing primary residential parent; the panel reversed in part, reinstated the March 1, 2013 parenting plan, and returned primary custody to Mother.

Issues

Issue	Father’s Argument	Mother’s Argument	Held
Whether a material change in circumstances justified modifying the parenting plan	Mother deceived Father about her occupation; her prostitution (and related online material) is per se harmful and was an unexpected change affecting the children	Mother admitted past Nevada prostitution but said children were not exposed; she later obtained social‑work employment and did not currently work as a prostitute; mere deceit or lawful adult employment abroad does not alone show effect on children	The court: evidence does not preponderate that Mother’s prostitution or deceit materially affected the children’s well‑being; but evidence supports finding of material change based on Mother’s hostility toward Father/stepmother (mutual hostility noted)
Whether the best‑interest factors support designating Father as primary residential parent	Father provided stable housing, enrolled children in school, addressed speech therapy, and has extended family nearby; Mother’s past prostitution and alleged ongoing exposure risk argued to weigh against her	Mother argued continuity of her prior designation, lack of proof children were harmed or exposed, Father's arrearages and admitted drug use in the home undermined his fitness	The court: overall evidence preponderates against trial court’s best‑interest finding; trial court relied too heavily on purported ongoing prostitution (which record does not support); Father’s arrearages and drug incident undercut the decision. Trial court abused discretion in naming Father primary residential parent; March 1, 2013 plan reinstated

Key Cases Cited

Armbrister v. Armbrister, 414 S.W.3d 685 (Tenn. 2013) (standards for appellate review of custody modifications and best‑interest findings)
In re T.C.D., 261 S.W.3d 734 (Tenn. Ct. App. 2007) (changed‑circumstances standard and effect on child’s welfare)
Kesterson v. Varner, 172 S.W.3d 556 (Tenn. Ct. App. 2005) (three‑part inquiry for material change: occurrence after order, known/anticipated, meaningful effect on child)
Kendrick v. Shoemake, 90 S.W.3d 566 (Tenn. 2002) (precedent on modification standards referenced in Kesterson)
Varley v. Varley, 934 S.W.2d 659 (Tenn. Ct. App. 1996) (parental sexual infidelity alone does not disqualify parent absent evidence of harm to child)
Nelson v. Nelson, 66 S.W.3d 896 (Tenn. Ct. App. 2001) (conduct not ipso facto disqualifying; need evidence of adverse effect on child)
Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. Ct. App. 1991) (custody orders should not be used to punish a parent for misconduct)