This recent article by Marlene Moses in the Tennessee Bar Journal may be of interest to readers of this blog.

Modification of Permanent Parenting Plans in Tennessee

I worry when a client appears to be on the verge of giving up on getting the terms of an initial Permanent Parenting Plan just right. Whether they are in the throes of active blood-bath litigation or even just negotiating amicably in a mediation session, parties often will do just about anything to move forward quickly, including settling on a parenting plan with which they are not altogether satisfied. Many parties mistakenly believe that if they can just get divorced or otherwise get past entry of an initial parenting plan, things with the other parent will magically become easier. It is a misconception that a party can automatically revisit the parenting plan at a later date once the dust settles and simply fix whatever he or she feels needs to be fixed.

Parenting arrangements potentially can be modified in two primary ways: (1) changes to the residential parenting schedule; or (2) a change in “custody,” i.e., the designation of the primary residential parent who has residential time with the children the majority of the time. Obviously, the latter is much more difficult to accomplish.

Modifying the Parenting Schedule

A party requesting only modification of the residential parenting schedule (but not a change of custody) must meet the standard set forth in Tennessee Code Annotated §36-6-101(a)(2)(C), which requires the petitioner to prove:

a material change of circumstance affecting the child’s best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.

The aforementioned standard sets what is widely known among domestic practitioners as “a very low threshold for establishing a material change of circumstances. Indeed, merely showing that the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstances test.” In practice, since the parties usually must first engage in alternate dispute resolution prior to returning to court, this presents an opportunity for both parties to revisit the parenting plan and tweak the provisions with which either or both of them are dissatisfied. Unless one party is dead set against any modifications to the parenting plan, the party who first sought to modify the parenting plan need not jump through large hoops to prove that a material change of circumstances has indeed arisen. The Amended Parenting Plan or, if applicable, the Agreed Order incorporating the modified parenting plan should contain a recital of the fact that a material change of circumstances has arisen and that the modified parenting plan is in the best interest of the children. However, unless it is evident from the record that the modified parenting plan is not in the children’s best interest, trial courts usually do not seem to require much proof of a material change of circumstances before approving the modified parenting plan submitted for entry by the parties.

However, by the time a case makes its way to trial, proving a “material change” has indeed become an issue. By way of example, Tennessee courts have held that the following circumstances are considered “material changes” sufficient to justify a modification of the residential parenting schedule:

• More than 10 years after entry of the initial parenting schedule, the children developed new interests and focuses in their lives that the alternate residential parent forbade, including taking summer jobs, spending time with friends, and participating in outside activities while in that parent’s care for the majority of the summer.
• When one parent relocates (for a legitimate reason) less than 100 miles away but still far enough away to result in the 50/50 equal parenting schedule becoming unworkable, it may be appropriate to modify the schedule such that one parent has standard parenting time (80 to 120 days per year) instead of 182.5 days. In Clement v. Clement, it was the mother who moved away, and the father’s development of substance abuse issues was a factor in the reduction of his parenting time.
• An improvement in the circumstances of the alternate residential parent affecting the child’s well-being  Resolution of a parent’s prior substance abuse issues could result in an award of parenting time when there was no such prior award.

In contrast, there are relatively few cases holding it improper to modify the residential parenting schedule. The following are a couple of the rare examples:

• If there is no material change in the circumstances that were the rationale for an award of no parenting time, a subsequent award of parenting time is not appropriate. In Hill v. Hill, the father was incarcerated for sexually abusing his step-daughter. In the parties’ divorce proceedings, he was granted no parenting time with the parties’ children. Post-divorce, while the father was still incarcerated, he petitioned the court for parenting time. The petition was denied, as the father failed to demonstrate a material change of circumstances. Although he claimed to have been rehabilitated, all evidence showed to the contrary, including his continued denial of any abuse toward the minor children.
• Remarriage of the alternate residential parent may not be considered a material change of circumstances justifying an award of additional parenting time in the absence of proof that there had been “significant changes” in that parent’s “living or working condition that significantly affected” his or her parenting.

Changing Custody

A party requesting a change in custody must meet the standard set forth in Tennessee Code Annotated § 36-6-101(a)(2)(B), which requires the petitioner to prove:

a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Although the two subsections do not differ greatly in their substance, our courts have interpreted the statute to mean that in order to designate a different custodian for the children under subsection (B), the trial court must find that a more substantial change of circumstances has occurred than has to have occurred under subsection (C) to justify a less drastic change in a parenting plan, such as a change in the residential parenting or visitation schedule.

A parent’s circumstances can change significantly, but if the change has little or no effect on the children, it is not appropriate to modify custody. Although there are no set rules defining what specific circumstances would constitute a material change justifying a change in custody, the court is to consider whether the change in circumstances has occurred after entry of the order sought to be modified, whether the changed circumstances were not reasonably anticipated when the underlying decree was entered, and whether the change is one that affects the child’s well-being in a meaningful way.

If the petitioner makes a prima facie showing of the foregoing, then the court must next determine whether a change in custody is in the best interest of the child. The court is to engage anew in a comparative fitness test considering a number of factors, including those set forth in Tennessee Code Annotated §36-6-106(a), which are used in making an initial custody determination. These include, for example, the emotional ties existing between the parents and the child; each parent’s ability to care for the child financially and otherwise; each parent’s mental and physical health; and the reasonable preference of the child if 12 years of age or older. The court is also to consider the factors set forth in Tennessee Code Annotated §36-6-404 to fashion a residential schedule, including, for example, the emotional and developmental needs of the child, the employment schedule of each parent, and the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. The court has a great deal of discretion in deciding which factors are most important, and which factors favor which parent, in any given case.

When considering whether to change custody, our courts hold the bar high because our laws and public policies favor stability and consistency for children. Removing a child from one parent disrupts that stability and is thus disfavored unless there is specific proof that it is in the child’s best interest to be uprooted and placed with the other parent.

Tennessee courts have held that the following circumstances are considered a “material change” sufficient to justify a change in custody:

• Vindictive relocation of the children out of state;
• Joint custody arrangements becoming unworkable because the parties have proven themselves incapable of making joint decisions in the best interest of their children;
• Remarriage of the primary residential parent to someone whose influence is having a negative effect on the child, such as someone with prior felony convictions, including charges of domestic violence;
• Inappropriate restriction of parenting time between the alternate residential parent and the child; and
• A parent’s inappropriate or indiscriminate sexual conduct involving neglect of the child (with the caveat that the mere fact that the parent cohabitates with a paramour is not generally sufficient to change custody unless this conduct is proven to negatively affect the child’s well-being).

In contrast, Tennessee courts have held that the following circumstances are not considered a “material change” sufficient to justify a change in custody:

• Cohabitation of the primary residential parent with a paramour out of wedlock where it does not negatively affect the welfare of the minor children;
• Homosexuality of the primary residential parent where it does not negatively affect the welfare of the minor children;
• Evidence that the alternate residential parent and the child have grown much closer, even when coupled with testimony of the child’s preferences;
• Hospitalization of the primary residential parent for a mental illness from which the parent suffered prior to the parties’ divorce and of which the alternate residential parent was aware at the time of the divorce, but where the primary residential parent still was able to properly parent the children in spite of the illness; and
• Isolated episodes of poor parental judgment such as riding on four-wheelers with the children while drinking beer and without helmets.

Conclusion

People’s circumstances inevitably change over the years. It is important that parenting plans keep up with these changes if the children are materially affected by the particular changed circumstances. However, it is equally important that changes to a parenting plan not be needlessly thrust upon a child who is doing fine and who would be better off if things stayed the same, despite minor or transient changes in a parent’s circumstances. It is often said that the legal system should be used judiciously. There is perhaps no better example than legal proceedings involving children.

Source: Modification of Permanent Parenting Plans in Tennessee (Tennessee Bar Journal, May 2013).

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