Posted by: koherston | September 24, 2012

Standard for Change of Custody in Tennessee When Parents Share Equal Parenting Time: Rigsby v. Edmonds

Facts: As part of their 2008 divorce, Mother and Father entered a parenting plan that provided for equal parenting time (alternating weeks) and designated Mother as the primary residential parent. Later, Mother was allowed to relocate to Ohio with Child. Still later, Father petitioned to modify the parenting plan because Child was about to start kindergarten and “it will no longer be feasible for the parties to rotate and alternate parenting times on a weekly basis.” After a trial, the trial court found the parenting plan to be “unworkable” because of the distance and Child’s impending entry into kindergarten. The trial court further found this to constitute a material change of circumstances requiring a modification of the parenting plan. The trial court designated Father as the new primary residential parent of the Child and set a new parenting schedule. Mother appealed.

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

Mother argued the trial court erred in finding that a material change of circumstances had occurred such as to justify a change in the permanent parenting plan.

The threshold issue is whether a material change in circumstances has occurred after the initial child custody determination. While there are no hard and fast rules for determining when a child’s circumstances have changed sufficiently to warrant a change of his or her custody, the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: (1) the change has occurred after the entry of the order sought to be modified, (2) the change is not one that was known or reasonably anticipated when the order was entered, and (3) the change is one that affects the child’s well-being in a meaningful way.

If a material change in circumstances has been proven, it must then be determined whether the modification is in the child’s best interests according to the factors enumerated in Tennessee Code Annotated § 36-6-106. It necessarily follows that if no material change in circumstances has been proven, the trial court is not required to make a best interests determination and must deny the request for a change of custody.

The Court concluded that the material change standard should be analyzed under Tennessee Code Annotated § 36-6-101(a)(2)(B) because Father sought not only to change the parenting schedule but also the primary residential parent designation and, therefore, custody.

The Trial Court permitted Mother to move with the Child to Ohio in 2010. This case was tried in August 2011. It was foreseeable in 2010 that the Child would grow a year or so older and need to enter a school system somewhere. The fact that a child gets a year older every year, inevitable as it is, cannot be regarded on its own as inherently a material change of circumstances for purposes of altering the primary residential parent. . . .

No new and unanticipated factual developments have occurred in this case that constitute a material change of circumstances under Tennessee Code Annotated § 36-6-101(a)(2)(B) sufficient to warrant a change in the designated primary residential parent. Therefore, nothing has occurred to warrant removing Mother as the primary residential parent of the Child. We reverse the Trial Court on this issue.

While we hold that no material change of circumstances has occurred sufficient to justify changing the Child’s primary residential parent from Mother to Father, we do believe that the Trial Court was correct in finding a material change of circumstances had occurred under Tenn. Code Ann. § 36-6-101(a)(2)(C) sufficient to require that the parenting schedule in this case be modified to account for the Child’s school schedule. The evidence preponderates in favor of the Trial Court’s finding that the parents “alternating parenting times on a weekly or bi-weekly basis . . .” is no longer workable because the Child is in school.

The record shows that, as the Trial Court found, both Mother and Father are fit parents, and the Child’s welfare and best interests will be furthered by spending significant time with each parent. We, therefore, remand this cause to the Trial Court for it to modify the residential parenting schedule in keeping with this Opinion, and, the Child’s best interests, as required.

K.O.’s Comment: The Court’s use of the standard in § 36-6-101(a)(2)(B) is consistent with prior case law so that’s to be expected. The Court loses me, however, when it equates a change in the “primary residential parent” designation to a full-blown change of custody. That makes little sense to me where, as here, the parents had been sharing equal parenting time. “Primary residential parent” is a term of art used to identify which parent is responsible for the child the majority of the time. When the parents share equal parenting time, there is no primary residential parent as that term of art is defined in the law. Tennessee Code Annotated § 36-6-410 nonetheless requires that one parent always be designated the primary residential parent “solely for the purpose of [] state and federal statutes and any applicable policies of insurance that require a designation . . . .” Should that mandatory administrative designation be considered an initial award of custody when the parents share equal time? Surely not. In Estes v. Estes, the Court didn’t think so, noting 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’s reliance on what in this context is a meaningless primary residential parent designation is especially troubling because the trial court actually conducted a best interest analysis and determined it was in Child’s best interest for Father to be designated the primary residential parent. While both parties should be faulted for not anticipating the “change” of circumstances that led the parenting plan to be unworkable, to undo a judicial determination of the child’s best interest by breathing life into an otherwise meaningless PRP designation should raise some eyebrows. I predict a lot of quarreling over the PRP designation from now on when parents share equal time. It might not be as meaningless as the statute would indicate.

Rigsby v. Edmonds (Tennessee Court of Appeals, Eastern Section, August 9, 2012).

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


Responses

  1. How else is the court going to support a finding of child’s best interest favoring the child staying in school in the original location? Granted it seems on the merits alone that changing PRP is not warranted by a simple change in circumstance, the best interest of the child was determined to be staying in the original location and the only way to support this was to prevent the move away by the current PRP (mother) from affecting the child. I agree it was strange to hinge on a PRP designation but the intent of the court in doing so seems clear to me. I welcome your feedback K.O.


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