Facts: When Mother and Father divorced, the agreed parenting plan designated Father as the primary residential parent of Child and did not allow for Mother to have any visitation. Despite the parenting plan, Mother continued to live in the home with Father and Child for over three years. During this time, Mother committed various crimes, including embezzlement and forgery.

The parties eventually separated, and Mother obtained her own residence. One month later, Mother filed a petition to modify the parenting plan and to establish visitation.

The trial court held that a material change in circumstance had occurred when Parents ignored the terms of the parenting plan and lived together with Child as they had before the divorce and that another material change occurred when Mother was “essentially and abruptly removed” from the Child’s life when the parties’ separated.

The trial court acknowledged Mother’s criminal conduct but found that her conduct, even though despicable, did not change the fact that Mother loved Child and had always been a sound caregiver. The trial court held that the “greater weight of the evidence show[ed] that she would continue to be a good mother.” The court performed a best interest analysis before designating Father as the primary residential parent but holding that Mother should have “liberal unsupervised visitation” with Child. Mother was awarded 140 days of visitation.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, 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.

The determination of whether a “material change of circumstances” has occurred requires a different standard depending upon whether a parent is seeking to modify custody, i.e., change the primary residential parent, or modify the residential parenting schedule. Tennessee law establishes a lower threshold for modification of a residential parenting schedule.

In modifying a residential parenting schedule, once a material change of circumstances is found, the trial court must then determine whether a change in visitation is in the best interest of the child. This determination requires consideration of a number of factors, including those set forth at Tennessee Code Annotated § 36-6-106(a) to make an initial custody determination and those at Tennessee Code Annotated § 36-6-404(b) to establish the residential schedule.

After reviewing the extensive record, the Court concluded:

In this case, Parents never adhered to the parenting plan. Parents did not agree on much throughout the trial but each agreed that Mother, whether supervised or unsupervised, was a constant presence in the Child’s life, despite the agreement reached in the initial parenting plan that was adopted by the trial court. Child became accustomed to Mother’s presence and was upset by Mother’s absence. Each change, Mother’s constant presence and then subsequent absence, affected the Child’s well-being in a meaningful way and necessitated a change in the residential parenting schedule that was in the best interest of the Child. Accordingly, we affirm the court’s decision that a material change in circumstances occurred when Mother remained in the home after the entry of the parenting plan and when Mother left the home after years of liberal visitation with the Child….

In this case, Parents submitted exhaustive and at times, duplicative evidence of the other parent’s moral depravity and inability to properly care for the Child. Mother alleged that Father was abusive and vindictive, while Father alleged that Mother was incapable of accepting responsibility for and improving her criminal and deceitful behavior that affected the Child. Notably, the court appeared to agree with each parent’s assessment of the other but found that the Child’s maintenance of a relationship with each parent was in the Child’s best interest. We agree. Each parent in this case has shortcomings; however, the Child will benefit from the continued nurturing that Mother provided after the divorce and the continued stability that Father provided.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Compare this case with Greenwood v. Purrenhage, issued five days later by the Middle Section, in which the Court found Mother’s granting of more time to Father than the parenting plan required was not a material change, but rather an exercise of parental cooperation, which should be encouraged and not penalized. Unfortunately, Greenwood is designated as a “Memorandum Opinion” so it cannot be cited in any other case. Add me to the growing chorus of lawyers critical of what we perceive to be the excessive use of the memorandum opinion designation by the Court of Appeals.

Graham v. Graham (Tennessee Court of Appeals, Eastern Section, March 21, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.