Posted by: koherston | November 4, 2013

Tennessee Supreme Court Changes Standard for Material Change of Circumstances When Modifying Parenting Schedule: Armbrister v. Armbrister

Knoxville child custody lawyersFacts: The parties were divorced in 2009. The Permanent Parenting Plan had Mother caring for the children for 280 days to Father’s 85 days. In 2011, Father filed a motion to modify the parenting plan alleging that he had moved, remarried, and his work schedule had changed after he went into business for himself, which freed him to care for the children on Fridays. Mother asserted there had been no material change of circumstances.

After a trial, the Court found both homes to be stable, secure, and healthy, and the children to be happy and well-adjusted. Importantly, the trial court further found a material change of circumstances that was not sufficient to change custody but was sufficient to change the parenting schedule. After finding modification to be in the children’s best interest, the trial court entered a new parenting plan awarding Mother 222 days with the children and Father 143 days. Mother appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court. My analysis of that opinion can be found here. Father appealed from that decision.

The Tennessee Supreme Court took the case to decide whether a parent seeking to modify a parenting schedule in a permanent parenting plan must prove that an alleged material change in circumstances could not reasonably have been anticipated when the residential parenting schedule was originally established.

Determining whether a parenting plan can or should be modified is a two-step process.

First, the court must determine whether a material change in circumstances has occurred after the initial child custody determination. Although there are no bright-line rules for determining when such a change has occurred, 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.

Second, after finding that a material change in circumstances has occurred, the trial court must determine whether modification of custody is in the child’s best interests using the factors enumerated in Tennessee Code Annotated § 36-6-106.

Further complicating matters, Tennessee requires a “very low threshold” for establishing a material change of circumstances in cases seeking only to change the parenting schedule. The standard for changing custody is far more stringent.

The statute requiring a material change for a parenting schedule change, Tennessee Code Annotated § 36-6-101(a)(2)(C), provides:

(C) 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.

After reviewing the historical roots of the material change requirement, the Tennessee Supreme Court changed the material change analysis when modifying a parenting schedule, writing:

By declaring that changes relating to a child’s age or a parent’s living or working conditions may constitute a material change in circumstances, the General Assembly has plainly expressed its intent to permit modification of residential parenting schedules based on changes that reasonably could have been anticipated when the original residential parenting schedule was established….

We further conclude that section 36-6-101(a)(2)(C) abrogates any prior Tennessee decision . . . which may be read as requiring a party requesting modification of a residential parenting schedule to prove that the alleged material change in circumstances could not reasonably have been anticipated when the initial residential parenting schedule was established. Consistent with section 36-6-101(a)(2)(C), we hold that facts or changed conditions which reasonably could have been anticipated when the initial residential parenting schedule was adopted may support a finding of a material change in circumstances, so long as the party seeking modification has proven by a preponderance of the evidence “a material change of circumstance affecting the child’s best interest.”

In other words, one no longer needs to prove that the material change was not known or reasonably anticipated when the parenting schedule was entered in order to modify the parenting schedule.

After finding that Father’s proposed modification was in the children’s best interest, the Supreme Court reinstated the trial court’s modification to the parenting schedule.

K.O.’s Comment: I agreed with the dissenting opinion at the Court of Appeals level so I am pleased with this outcome, although I did not anticipate this change in the law. I felt the trial court’s analysis was correct under the law that existed prior to this opinion.

There is one piece of dicta in the opinion I think Tennessee family law attorneys should note. On the subject of how the modification increases Father’s parenting time from 85 days to 143 days, the Court writes, “The modification does, however, allow Father to move closer to the statutory goal, which is to allow both parents to enjoy the ‘maximum participation possible’ in the lives of their children.” Lawyers should expect to hear that “closer to the statutory goal” language again and again from litigants arguing for equal parenting time.

Armbrister v. Armbrister (Tennessee Supreme Court, October 21, 2013).

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


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