Facts: Mother and Father, the parents of one child, were divorced in 2011. While the divorce was pending, Father moved to Florida. After the trial, the trial court designated Father as the primary residential parent in December 2011. Child was to remain in Tennessee with Mother to complete the rest of the school year before moving to Florida with Father the following summer. At that time, Mother was awarded parenting time comprised of various three-day weekends. At trial, the trial court also commented that, “It is the desire of this court for Mother to enjoy equal parenting time with the Father in the event she relocates to the State of Florida.”

After the final order was entered in December 2011, Mother decided to relocate to Florida. In March 2012, Mother filed a petition to modify the parenting plan. At this time, both Mother in Child resided in Tennessee. Mother sought only equal parenting time, not to be named the primary residential parent of Child. Child move to Florida as ordered in May 2012. Mother subsequently relocated to Florida and moved into a home located approximately two miles from Father’s home.

After a hearing, the trial court found that Mother’s move to Florida with a material change in circumstances and modify the parenting plan to allow the parties to have equal visitation with the child on an alternating weekly basis. The primary residential parent, i.e., Father, was not changed.

Father appealed.

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

Father argued that Mother failed to prove a material change in circumstances.

The threshold issue in proceedings to modify a parenting plan is whether a material change in circumstances affecting the child’s best interest has occurred since the adoption of the existing parenting plan. After making the finding that a material change of circumstances has occurred, the court proceeds to make a fresh determination of the best interest of the child. For purposes of modification of the residential parenting schedule, the petitioner has the burden to prove by a preponderance of the evidence a material change of circumstance, which may include, but is not limited to, significant changes in the needs of the child over time, 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 statute regarding changes to a residential parenting schedule sets a very low threshold for establishing a material change of circumstances. In that instance, merely showing that the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstances test.

In affirming the trial court, the Court stated:

The trial court’s previous parenting schedule gave Father all the time with the child other than three-day weekends, which would go to Mother. At the time of trial, this was a reasonable schedule given the distance between Tennessee and Father’s home in Florida. However, once Mother moved to Florida, mere miles away from Father’s home, the previous impediments to her parenting time, such as the distance and the expense of travel, were no longer present. Tennessee Code Annotated Section 36-6-101(a)(2)(C) expressly contemplates that “significant changes in the parent’s living or working condition that significantly affect parenting” will constitute material changes in circumstances for purposes of modifying a parenting schedule. In addition, as previously stated, in order to modify visitation, Mother must meet a “very low” threshold to prove a material change in circumstances. Mother’s living and working conditions were significantly changed by her move to Florida to be nearer to the child. Mother’s move also allows Mother to more easily visit with the child on a more regular basis, without the expense of transporting herself or the child hundreds of miles. Accordingly, the trial court did not err in finding, based on the particular facts of this case, that Mother’s move, and her resulting ability to have more visitation with the child without major expense, constituted a material change in circumstances affecting the best interest of the child.

Once the court determines that substantial and material changes in circumstances occurred that affect the child’s best interests, the court must then determine whether modification of the parenting plan is in the child’s best interests and, if so, to fashion a plan that is in the child’s best interests. Unfortunately, the trial court failed to make any such finding or address the relevant statutory factors in this case. Accordingly, the case was remanded back to the trial court for additional findings.

K.O.’s Comment: There is case law in Tennessee that states: “In situations where one parent is moving, the law in Tennessee states that a move, in and of itself, does not constitute a material change in circumstances.” See, e.g., Woolman v. Woolman. These cases, however, generally concern a change in a custody order or a petition by the primary residential parent to move out of state, rather than a mere change in a parenting schedule motivated by the alternative residential parent’s move. In fact, the Parental Relocation Statute, Tennessee Code Annotated § 36-6-108, specifically states that: “Nothing in this section shall prohibit either parent from petitioning the court at any time to address issues, such as, but not limited to, visitation, other than a change of custody related to the move.” Because Mother only sought to modify the parenting schedule and did not seek to change the primary residential parent, the “very low” standard for a material change applied in this case. This is an example of more fallout from the legal fiction that occurs when we equate a parent enjoying equal time with the “primary residential parent,” which is defined as a parent who enjoys more than equal time.

Iman v. Iman (Tennessee Court of Appeals, Middle Section, July 16, 2013).

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

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