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Berry v. Berry - No. E2004-01832-COA-R3-CV, 2005 Tenn. App. LEXIS 320 (Ct. App. May 31, 2005)


In cases wherein a party seeks to modify an existing custody arrangement, the threshold issue is whether a material change in circumstances has occurred since the initial custody determination. The circumstances of children and their parents change - children grow older, their needs change, one or both parties remarry. But not all changes in the circumstances of the parties and the child warrant a change in custody. There are no hard and fast rules for when there has been a change of circumstance sufficient to justify a change in custody. A court's decision with regard to modification of custody is contingent upon the circumstances presented and the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child's well-being in a meaningful way.


This was a dispute between two parents over custody of their eight-year-old son. Christy Michelle Berry and Lester Stephen Berry were married on November 23, 1996, one month after their son, Stephen, was born. After nearly four years of marriage, the parties separated and Christy filed for divorce. The parties reached an amicable settlement of all issues, including custody and visitation, and were granted a divorce on the grounds of irreconcilable differences on April 25, 2001. The parties' marital dissolution agreement provided that the parties would have joint custody of their son; designated Christy as the primary residential parent; and gave Lester parenting time on alternate weekends, certain holidays and two weeks in the summer. The trial court changed custody to Lester based upon Christy’s homosexuality and the effect it would have on the child as he grew older. Christy appealed, arguing that the trial court erred by modifying custody based on her sexual orientation. 


Did the trial court err by modifying child custody based on the mother’s sexual orientation?




The court held that there was nothing in the record to indicate that Christy’s sexual orientation affected the child's welfare in a meaningful way. The child was well-adjusted, doing well in school, and was not affected by his mother's homosexuality. The trial court based its decision in part on the future effect the mother's sexual conduct might have on the child and that the child would have to "contend with the mother's gay lifestyle as he grew older." The trial court's finding of future harm was speculative and presupposed that the mother's homosexuality would cause the child problems as he matured. There was no credible proof in the record to support a finding that the mother's sexual orientation would have an adverse impact on the child as he grew older.

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