Facts: Upon divorce, Mother was named primary residential parent for Child.  Several years later, Father filed petition to change custody.  The trial court found Father had proved a material change of circumstances but found the parenting plan should not be changed in a “major way.”  The trial court modified the parenting schedule but did not change custody as Father requested.  The trial court also calculated child support based on Mother’s income of zero dollars instead of imputing income to her for being willfully unemployed.  Father appealed.

The Court of Appeals affirmed the trial court.

Regarding change of custody, the Court noted there are two standards for modifying a parenting schedule and changing custody.

To change custody, the standard set forth in Tenn. Code Ann. § 36-6-101(a)(2)(B) is as follows:

If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change of 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.

To modify the parenting schedule, the standard set forth in Tenn. Code Ann. § 36-6-101(a)(2)(C) is as follows:

If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence 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 Court explains the standard in Tenn. Code Ann. § 36-6-101(a)(2)(C) is a “very low threshold” for modification while the standard for changing custody is more difficult to satisfy.

If the person seeking the change of custody cannot demonstrate that the child’s circumstances have changed in some material way, the trial court should not reexamine the comparative fitness of the parents, or engage in a ‘best interests of the child’ analysis.

If you want to know the details of the Father’s argument for modification, you’ll have to read the opinion.  Suffice it to say the Court found the evidence in the record did not preponderate against the trial court’s findings.

Finally, Father argued that Mother should be found to be willfully unemployed for child support purposes and, therefore, income should be imputed to her.

The mother testified that she was not working and could not work due to her son’s medical condition, which she stated required constant monitoring, including the daily monitoring of his fluid intake, his number of wet diapers, etc. The mother testified that her most recent employment was a part-time job preparing taxes, and that she had used a private babysitter while she worked, but that person had since moved away. . . .

The regulations explaining what constitutes voluntary unemployment state that any intentional choice or act of a parent that adversely affects that parent’s income can be a basis for such a finding.  The regulations go on to explain that the court can consider the parent’s role as caretaker of a handicapped or seriously ill child which reduces or eliminates the parent’s ability to work outside the home. They further explain that stay-at-home parents are an “important and valuable factor in a child’s life”, and that in considering whether a stay-at-home parent should be imputed income, the court should look at whether the parent stayed at home when the parties were married, the length of time the parent has remained out of the workforce for this purpose, and the age of the children.

In this case, the mother testified that her ability to work was significantly limited by her infant son’s health condition, and that she had decided to be a stay-at-home mom. There was no evidence regarding whether the mother was a stay-at-home mom while the parties were married, but she had been out of work basically since she became pregnant with her son due to health problems . . . . Based on these facts, the Trial Court did not err in finding that the mother was not voluntarily unemployed and we affirm his refusal to impute income to her.

Reinagel v. Reinagel (Tenn. Ct. App. July 21, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.