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Where there is domestic violence
, this is something that the court may consider. The court will look at the preference of a child over the age of twelve, but this is not the determinative factor.Kendrick v. Kendrick Shoemake
In child custody cases, the law is well established that when a decree awarding custody of children has been entered, 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 of custody. Long v. Long
, 488 S.W.2d 729 (Tenn. App.1972), Hicks v. Hicks,
26 Tenn. App. 641, 176 S.W.2d 371, 374-75 (Tenn. App. 1943); Woodard v. Woodard
, 783 S.W.2d 188, 189 (Tenn. App. 1989); Wall v. Wall
, 907 S.W.2d 829, 832 (Tenn. App. 1995). In other words, once the trial court has made an initial determination with respect to custody, it cannot entertain a subsequent petition to modify custody absent a material change in circumstances such that the welfare of the child demands a redetermination. See, e.g., Massengale v. Massengale
, 915 S.W.2d 818, 819 (Tenn. App.1995). The party seeking a change in custody has the initial burden to show a material change of circumstances which affects the welfare of the child. Harris v. Harris
, 832 S.W.2d 352, 352 (Tenn.1992). The burden remains on the party seeking the new custody arrangements to show that he or she is comparatively more fit than the party with custody under the challenged custody decree and to show that it would be in the child's best interests for the moving party to be the custodial parent. Gorski v. Ragains
, No. 01A01-9710-GS-00597, 1999 WL 51141 at *4, (Tenn. App. 1999) citing Nichols v. Nichols
, 792 S.W.2d 713, 715 (Tenn.1990); Rust v. Rust
, 864 S.W.2d 52, 56 (Tenn. App.1993).
there is a strong presumption in favor of existing custody arrangements. Smithson v. Eatherly
, No. 01A01-9806-CV-00314, 1999 WL 548586 at *2 (Tenn. App.1999) citing Taylor v. Taylor
, 849 S.W.2d 319, 332 (Tenn.1993). The party seeking to change the existing custody arrangement has the burden of proof
to show both that the child's circumstances have materially changed in a way that was not reasonably foreseeable at the time of the original custody decision and that changing the existing custody arrangement will serve the child's best interests. Geiger v. Boyle
, No. 01A01-9809-CH-00467, 1999 WL 499733 at *3 (Tenn. App.1999); citing Smith v. Haase,
521 S.W.2d 49, 50 (Tenn.1975.); McDaniel v. McDaniel
, 743 S.W.2d 167, 169 (Tenn. App.1987); Seessel v. Seessel
, 748 S.W.2d 422, 429 (Tenn.1988); Hall v. Hall
, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. App. 1995).