Facts: Never-married Mother and Father are the parents of Child. A parenting plan was entered designating Mother as the primary residential parent and awarding Father 130 days of parenting time.
Subsequent to the entry of the parenting plan, Mother and Father resided in the same residence for 14 months, during which time they worked opposite shifts and shared equal parenting time and acted as Child’s primary caregivers.
After 14 months, Mother moved into her own apartment. Mother and Father continued to share equal parenting time for almost a year until Mother suddenly insisted the schedule return to that which was set out in the parenting plan because she missed Child and “wanted to spend a little more time with her.”
A few months later, the parties returned to sharing equal parenting time during the summer before going back to the original schedule in the parenting plan.
Father petitioned to modify the parenting plan to provide for equal parenting time.
The trial court found there had not been a material change of circumstances and dismissed Father’s petition.
On Appeal: The Court of Appeals reversed the trial court.
The relevant statute with respect to a change in the residential parenting schedule (and not a change in primary residential parent) is Tennessee Code § 36-6-101(a)(2)(C), which states:
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.
This statute sets a very low threshold for establishing a material change of circumstances. Indeed, merely showing the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstance test. The statute reflects the General Assembly’s policy decision to make it easier to establish a material change in circumstances has occurred when a party seeks to modify a residential parenting schedule.
First, the Court reversed the trial court’s ruling on the issue of the foreseeability of a material change under Tennessee Code § 36-6-101(a)(2)(C), writing:
The court declined to find that [Child’s] enrollment in preschool constituted a material change in circumstances because it was “anticipated” by the prior court order. The Tennessee Supreme Court recently considered whether a change in circumstances could justify a modification of a parenting plan even when the change was one that could have been anticipated when the initial parenting plan was established. The Court held that it could . . . “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.'” See Armbrister v. Armbrister. We conclude that the trial court applied an incorrect standard and incorrect reasoning in determining whether [Child’s] enrollment in preschool constituted a material change in circumstances affecting her best interest.
Next, the Court reversed the trial court’s ruling on whether a material change must adversely affect Child, writing:
As to significant changes in Mother’s and Father’s living or working conditions, the trial court found “a change in the parents’ living and working conditions several times since the decree was entered,” as the proof clearly established. However, the court reasoned that one of the significant changes, Mother’s moving into and out of the Grandparents’ home, did not “rise to the level of a material change in circumstances” because it was “beneficial” and not “detrimental” to [Child] and because the parties agreed to it. The court also reasoned that another change, Mother’s beginning a full-time work schedule, did not “rise to the level of a material change in circumstances” because it was “not a negative reflection on [Mother].” We conclude that the trial court applied an incorrect standard by implicitly requiring Father to prove that changes in the parties’ living and working conditions were detrimental to the child or reflected negatively on Mother.
Finally, the Court reversed the trial court’s ruling on whether the long intervals of equal parenting time constituted a material change:
As to failure to adhere to the parenting plan, the trial court found “that there was a change in parenting time, as [Mother] allowed [Father] to have more time than the parenting plan required,” but found that “[Mother] has not failed to adhere to the parenting plan.” The testimony clearly established that, even though a parenting plan allowing Mother and Father to enjoy 235 and 130 days of respective yearly parenting time was in effect, for over a year, both parents lived together with [Child] while they each provided care for her equally. Thereafter, for almost ten months, they continued to share equal parenting time while living apart. Given the low threshold for establishing a material change in circumstances for a proposed modification to a residential parenting schedule, we have determined that the evidence in the record preponderates against the trial court’s finding that “the change in parenting time does not rise to the level of a material change in circumstances that would justify changing the residential parenting time in the best interest of the child.”
Accordingly, the trial court was reversed and the case remanded for consideration of Child’s best interests in accordance with the statutory factors in Tennessee Code § 36-6-106.
K.O.’s Comment: As to the foreseeability issue, this is the first appellate opinion where a trial court was reversed for not following the new standard explained in Armbrister v. Armbrister.
As to the parties’ deviation from the parenting schedule, the Court has been inconsistent on this question. Compare Graham v. Graham (deviation from parenting schedule is material change) with Greenwood v. Purrenhage (deviation from parenting schedule is not material change) or Pace v. Pace (deviation from parenting schedule is not material change absent proof of effect on child). Lawyers should note Greenwood is a memorandum opinion.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.