Material Change of Circumstances and Change of Custody in Tennessee: Estes v. Estes

Facts: At divorce, Mother and Father agreed on a parenting plan designating Mother as the primary residential parent of the parties’ three children and establishing Father’s parenting time as alternating weekends plus one overnight each week. Both parties lived close to the children’s schools. Several years later, Mother remarried and moved to another county some 24 miles away from the children’s schools. Father filed a petition to modify the parenting plan, citing Mother’s move as the main material change of circumstances. At trial, the children testified in chambers that they would prefer a schedule of alternating weeks. The trial court found there had been a material change of circumstances that required a modification of the parenting plan, specifically Mother’s “move out of the county with all the logistical complications it created during the school year,” and that “the needs of the parties’ minor boys have changed due to their age.” The trial court found it was in the children’s best interest for custody to alternate weekly and designated both parents as the “primary residential parent.” Mother appealed.

On Appeal: The Court of Appeals affirmed in part and modified in part.

A decision on a request for modification of a parenting arrangement requires a two-step analysis. A party petitioning to change an existing custody order must prove both (1) that a material change of circumstances has occurred, and (2) that a change of custody or residential schedule is in the child’s best interest. Only after a threshold finding that a material change of circumstances has occurred is the court permitted to go on to make a fresh determination of the best interest of the child.

The Tennessee Supreme Court has set out some principles for the court to consider when a material change of circumstances is at issue:

Although there are no bright line rules as to whether a material change in circumstances has occurred after the initial custody determination, there are several relevant considerations: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.

Two statutory provisions provide competing standards for trial courts. Tennessee Code Ann. § 36-6-101(a)(2)(B) applies if the issue before the court is “a modification of the court’s prior decree pertaining to custody.” Subsection (B) says:

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 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.

Tennessee Code Ann. § 36-6-101(a)(2)(C) applies if the issue before the court is “a modification of the court’s prior decree pertaining to a residential parenting schedule.” Subsection (C) says:

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 of Appeals interprets 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 to have occurred than that which is required under subsection (C) to justify a less drastic change in a parenting plan, such as a change in the residential parenting or visitation schedule. While subsection (C) establishes a “very low threshold for establishing a material change of circumstances,” subsection (B) establishes a “more stringent standard.”

Mother argued the more stringent standard of subsection (B) should apply because the modification ordered by the trial court amounted to a change of custody. In support of her argument, Mother relied upon the recent case of Richards v. Richards. In that case, the parties lived near each other after divorce, and they agreed to divide parenting time with their school-aged child equally. The father subsequently moved about fifty miles away, rendering the equal division of parenting time no longer workable. Applying subsection (B), the trial court in Richards designated the mother as the child’s primary residential parent. Mother argued Richards established that if a change from an equal parenting schedule to one in which one parent becomes the primary residential parent is analyzed under subsection (B), the same standard should apply to a change from a parenting plan that designates one primary residential parent to a plan that sets out an equal parenting schedule.

In another recent case, Schreur v. Garner, the Court of Appeals applied subsection (C) to affirm a change of schedule from one in which the father served as the primary residential parent to one in which the parents shared parenting time equally. The Court commented:

The inconsistency between the two cases is perhaps due to the fact that a change to or from an equal parenting schedule falls somewhere in between a minor schedule adjustment and a change of custody from one parent to another.

The Court sidestepped this interesting (to me) question, finding that the distinction between the two subsections did not matter in this case because the evidence supported the finding of a material change of circumstances even under the more stringent standard of subsection (B).

The evidence showed that the twin boys had reached an age when they could benefit from being able to spend more time with Father, with whom they shared an interest in sports and outdoor activities. Also, Mother’s move to another county created some problems and difficulties that could be lessened by equalizing the parenting time between both parents. The children’s ability to stay in Warren County schools was jeopardized by the primary residential parent’s move out of county.

In sum, the proof demonstrated that after Mother moved away from Warren County, the existing parenting plan was no longer in the best interest of the older children in light of their changing needs, thus meeting the threshold requirement of a material change of circumstances under either Tennessee Code Ann. § 36-6-101(a)(2)(B) or (C).

The Court went on to correct the “flaw” in the parenting plan approved by the trial court, namely its failure to designate one parent as the primary residential parent.

Tennessee Code Ann. § 36-4-402(5) declares that the residential schedule must include the designation of a primary residential parent. Tennessee Code Ann. § 36-6-402(4) defines the primary residential parent as “the parent with whom the child resides more than fifty percent (50%) of the time.” Obviously, if the children are dividing their time equally between both parents, neither parent meets the statutory definition of a primary residential parent.

Nonetheless, Tennessee Code Ann. § 36-6-410 declares that the designation of a primary custodian is necessary for all state and federal statutes and applicable policies of insurance which require a determination of custody. Thus, “. . . even though there may be no primary residential parent in fact, the law requires the designation of one parent as the primary residential parent, regardless of the statutory definition.”

The trial court in the present case named both Mother and Father as the primary residential parent for the twins. The trial court’s action does not comply with the requirement that one parent be named as the primary residential parent. The trial court must designate that role to only one of the parents, but such designation does not affect or alter other provisions of the parenting plan, specifically, the equal division of parenting time. Because both parents agree that the boys should continue to go to school in Warren County, and because naming Mother as their primary residential parent could affect their ability to remain enrolled in that county, we direct the trial court on remand to name Father as the primary residential parent of the two boys.

Accordingly, the Court affirmed the trial court’s decision but modified it to name Father the primary residential parent.

Estes v. Estes (Tennessee Court of Appeals, Middle Section, October 7, 2011).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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