Facts: Mother and Father married in 2008, had Child in 2009, separated in 2010, and divorced in 2011. The trial court approved their agreed parenting plan with a schedule that provided for equal time while designating Mother as the primary residential parent.
Around three months after the divorce, Mother petitioned to modify the parenting schedule to reduce Father’s time. Father counter-petitioned to change custody and increase his parenting time.
Much of the testimony at trial focused on the difficulties the parties had experienced with the equal time parenting schedule. Both parties submitted proposed parenting plans with a residential schedule that provided the other parent with alternating weekends and one night a week during alternating weeks.
After hearing the proof, the trial court ruled there was “absolutely” no material change of circumstances warranting a change of custody (i.e., change in the primary residential parent designation) from Mother to Father.
The trial court also found it had “become evident the visitation schedule is a hardship for this three-year-old child” such that changing the equal time parenting schedule was in Child’s best interest. The trial court commented to the parties, “You all are probably poster children for who I wish would go before the legislature and talk to them about what happens when you try to divide a child in half, especially a young child.” Father’s parenting time was reduced to alternating weekends and one evening during alternating weeks in addition to summer and holiday time.
On Appeal: The Court of Appeals affirmed the trial court.
Decisions involving the custody of a child are among the most important decisions faced by the courts. When faced with a request to modify custody, courts generally favor the existing custody arrangement, on the premise that children tend to thrive in a stable environment.
Tennessee courts have repeatedly recognized that a child custody determination — once made and implemented — is res judicata upon the facts in existence or those that were reasonably foreseeable when the decision was made. At the same time, the courts may modify an award of child custody as intervening changes in circumstances and the exigencies of the case may require.
A party seeking a change in custody must prove two things — that a material change in circumstances has occurred and that a change of custody is in the best interest of the child. The determination of whether a material change in circumstance occurred requires a different standard depending upon whether a parent is seeking to modify custody (i.e., change the primary residential parent) or modify the residential parenting schedule.
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.
Not all changes in the circumstances of the parties and the child warrant a change in custody.
After reviewing the record, the Court wrote:
In our view, the evidence presents a picture of two parents who struggled to comply with the schedule they had imposed on themselves in an effort to have equal time with the Child….
The end result was a tired, often sick child, and parents who had grown frustrated with the schedule and each other’s apparent inability or unwillingness to accommodate the other’s need or desire for more flexibility in the parenting arrangement. The parties returned to the court after their own efforts to equally divide the parenting time had failed….
Given Mother’s role as the primary caregiver, the trial court reasonably ordered an increase in Mother’s parenting time under the day-to-day schedule. While this meant a corresponding decrease in Father’s parenting days, Father was additionally granted specific parenting time during holiday and vacation periods and for two weeks each summer.
Finding the trial court did not abuse its discretion, the Court of Appeals affirmed the trial court’s modification of the parenting schedule.
K.O.’s Comment: When changing from equal time to unequal time and there is no change in the primary residential parent (as was the case here), the standard for determining whether a material change of circumstances exists is set forth in Tennessee Code § 36-6-101(a)(2)(C), which is considered a “very low threshold.” See, e.g., Taylor v. Knott. Also remember the Supreme Court’s opinion in Armbrister v. Armbrister disposes of the foreseeability requirement for a material change under the § 36-6-101(a)(2)(C) standard. To change the parenting schedule, one need only show the existing arrangement has proven unworkable. Here, both parties agreed that was the case. They also agreed it was best for Child if one of them had significantly increased parenting time. The trial court just had to decide which parent it would be.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.