Facts: Mother and Father divorced and entered an agreed parenting plan providing for equal co-parenting time. Mother filed a petition to modify the parenting plan to designate her as the primary residential parent, and Father filed a counter-petition seeking the same relief. Mother alleged the distance between the parents—Father lived approximately an hour’s drive away—was proving unworkable when Child was in school. Attending school during Father’s co-parenting time required Child to travel one hour to school and one hour back to Father’s home. The parties stipulated that a material change of circumstances existed. After a hearing, the trial court found a material change, designated Mother as the primary residential parent, and awarded Father co-parenting time on alternating weekends and half of the summer. Father appealed.

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

When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstances has occurred and (2) that a change in custody or residential schedule is in the child’s best interest. A finding that a material change in circumstances has occurred is a threshold inquiry that, when made, allows the court to proceed to make a fresh determination of the best interest of the child. If the parent fails to prove a material change of circumstance, modification cannot to be considered.

There are no bright line rules as to the requirements necessary to modify a custody arrangement, but the Tennessee Supreme Court has directed trial courts to consider (1) whether the change occurred after the entry of the order sought to be modified; (2) whether the change was known or reasonably anticipated when the order was entered; and (3) whether the change is one that affects the child’s well-being in a meaningful way.

Tennessee has a different set of criteria for determining whether a material change of circumstance has occurred to justify a modification of a co-parenting schedule and the specifics of such a schedule. Because a change of the primary residential parent is such a drastic remedy, the material change analysis is held to a more stringent standard. Conversely, there is a very low threshold for establishing a material change of circumstances” when the requested modification concerns only the co-parenting schedule.

In this case, the modification sought concerned the primary residential parent so the parties were subject to the more stringent standard.

The trial court found:

The Court is confronted with a situation where the mother lives in White Pine, Tennessee, and the father in Louisville, Tennessee, or near Louisville, a distance of fifty miles and an hour’s drive each way. It is simply unworkable and a burden and undue hardship on this child, seven year old child, soon to be eight, to have to travel back and forth to attend school. It’s hard enough on weekend schedules because that’s an hour out of his day. . . .

The schedules of the work of the parents, the distances involved is a significant hurdle to try and to balance and to equalize the time that each parent has with [Child]. During the school year, it’s simply unworkable to carry him back and forth on any school day from Blount County to White Pine. So the previously entered parenting plan will be modified to accommodate the work and school schedules. . . .

The Court of Appeals analyzed the evidence as follows:

During the course of the proceedings, the parties stipulated that a material change in circumstances had occurred. Taken as a whole, the testimony supports the trial court’s conclusion that a change of circumstance indeed had occurred since the entry of the prior order and that modifications to the order and the entry of a new parenting plan was appropriate. With Mother’s move from Seymour to White Pine upon her remarriage, the distance between the parties is too great to continue co-parenting pursuant to the initial Plan. . . .

The trial court determined that although both parents love the Child, Mother most sees to his daily needs. Mother has provided the necessities and care, including all medical expenses, school expenses, and child care. Father has paid nothing. The trial court also found continuity to be an important factor, noting that the Child had lived and attended school in White Pine for three years and had a stable, satisfactory environment with Mother. The court further determined that it was not in the Child’s best interest that Father had allowed the paternal grandmother keep the Child and had also let the Child ride toys that were not conducive to his safety because of his medical condition.

Based on the factors outlined in Tennessee Code Annotated §§ 36-6-106 and 36-6-404(b), we affirm the trial court’s naming of Mother to be the primary residential parent as being in the best interest of the Child. Both parties are advised that failure to promote and encourage a close relationship between the Child and the other parent may result in this custody determination being reviewed in the future.

This is yet another example of the courts favoring the parent who has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities such as providing for the child’s daily needs.

Richards v. Richards (Tennessee Court of Appeals, Eastern Section, May 31, 2011).

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