Facts: Shortly after Child was born, Child was diagnosed with a rare genetic disorder that can cause grave neurological consequences if Child’s diet is not strictly controlled.

When the parents divorced several years later, the trial court approved their agreed parenting plan designating Mother as Child’s primary residential parent and dividing parenting time equally between the parties. The parenting plan further provided strict requirements for managing Child’s diet consistent with Child’s medical condition.

A few years after the divorce, Father petitioned to modify the parenting plan to designate him as the primary residential parent and increase his parenting time from 182.5 days to 265 days per year. The proof showed Mother was non-compliant with Child’s medical needs. Specifically, Mother did not believe Child suffered from the diagnosed neurological disorder or, if Child did have the condition, Mother believed it could be resolved through prayer. Proof further showed Mother often gave Child foods contrary to his strict dietary requirements..

The trial court found Mother had failed to properly manage Child’s strict dietary requirements and that this failure constituted a material change of circumstances warranting modification of the parenting plan. The trial court designated Father as primary residential parent and adopted a parenting schedule that limited Mother’s parenting time to 50 days per year.

Mother appealed.

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

The decision to modify a parenting arrangement generally 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. A material change of circumstances does not require a showing of a substantial risk of harm to the child. The emergence of such a risk, however, can constitute a material change of circumstances.

Applying the material change standard set forth in Tennessee Code Annotated § 36-6-101(a)(2)(C), which standard applies to changes in the parenting schedule, the Court commented:

[T]he trial court heard expert proof that the child suffers from a rare genetic condition that can lead to mental retardation and other neurological effects if his diet is not carefully controlled. Because of the child’s condition, the parenting plan required that both parents provide him with a diet appropriate for his condition. The proof showed, however, that Mother did not believe that there was anything wrong with the child, and that during the time he was in her care, she was unable or unwilling to conform his diet to his medical requirements or to accurately record his dietary intake, thereby failing to adhere to the parenting plan and exposing him to an unacceptable risk of harm….

We do not doubt that Mother loves her child or that she wants the best for him, but she appears unable to routinely follow the restricted diet that his medical condition requires….

The finding that Mother exposed the child to danger to his health by failing to follow the necessary dietary regimen is sufficient to support a finding that it is in the best interest of the child that Father become his Primary Residential Parent.

Mother also appealed the trial court’s decision to award her less than “standard visitation,” which is defined in the Child Support Guidelines to be every other weekend (Friday through Sunday), two weeks in the summer, in two weeks during the holidays, for a total of 80 days per year. On this point, the Court said: “While this is less than the ‘standard visitation’ described in the child support guidelines, it is apparent that the purpose of the provision is to protect the child from the effects of eating too much of the wrong kinds of foods for an individual suffering from [Child’s condition]…. We do not find that the trial court abused its discretion in limiting Mother’s visitation as it did.”

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: My only quarrel with this decision is the Court’s reliance upon the material change standard that applies to changes to parenting schedules. i.e., Tennessee Code Annotated § 36-6-101(a)(2)(C), instead of the more stringent standard that applies to changes in child custody — Tennessee Code Annotated § 36-6-101(a)(2)(B). This contradicts the Court’s prior holdings applying the more stringent standard to changes in the primary residential parent designation even when the parenting time is equally divided. See., e.g., Richards v. Richards or Garrett v. Garrett. While the facts in this case likely would have satisfied the more stringent standard, this case arguably opens the door for lawyers to argue the application of the far easier standard to changes in the primary residential parent designation when — until now — the applicability of that standard had been limited to changes in parenting schedules. The smart lawyer will take note of this subtle discrepancy and use it to his or her client’s advantage in the appropriate case.

Austin v. Torres (Tennessee Court of Appeals, Middle Section, March 20, 2014).

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