Facts: Mother and Father, the parents of Son, were divorced in 2001. After the divorce, Father moved to Memphis. The parenting plan provided Son would reside with Mother in Fairview, Tennessee during the school year and with Father in Memphis for eight weeks in the summer. Mother was designated the primary residential parent.
Twelve years later, Father sought to be designated the primary residential parent so Son could live with him in Memphis during the school year, attend Memphis University School (“MUS”), and swim for its team. Over the years, Son had become a nationally-ranked swimmer with a demanding practice schedule. Because of the time commitment required to excel at the sport, Son’s social circle was composed almost entirely of people who were involved in swimming. Son’s current high school did not have a swimming team, and Son’s opportunities to form friendships with his classmates were limited as a result.
The trial court found a material change in circumstance had occurred based on Son’s swimming expertise and the exceptional amount of time he devoted to training coupled with its impact on his social development. The trial court also found it was in Son’s best interest to designate Father as the primary residential parent. While most of the best interest factors favored neither parent, the trial court was greatly impressed by the testimony it heard from the 15-year-old Son about his desire to live with Father and attend MUS. The trial court afforded great weight to Son’s expressed preference, finding it was genuine, long-standing, and based on good reasons.
The trial court designated Father as the primary residential parent and reversed the residential parenting schedule so Son would spin the school year with Father and the summer with Mother.
On Appeal: The Court of Appeals affirmed the trial court.
A petition to change the primary residential parent requires a two-step analysis, and the petitioner bears the burden of proof in each step. First, the petitioner must prove by a preponderance of the evidence that a material change of circumstance has occurred. Second, the petitioner must show that a change of custody is in the child’s best interest.
Material Change. There is no bright line rule for determining when a change in circumstance is material enough to warrant changing an existing custody arrangement. Instead, when making this determination, courts should consider (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 a child’s well-being in a meaningful way. Such a change includes circumstances that make the parenting plan no longer in the best interests of the child.
Mother argued the trial court erred in finding a material change of circumstance. After reviewing the record, the Court disagreed, explaining:
The trial court found that a material change in circumstance had occurred based on Son’s athletic development and its impact on his social development. The evidence does not preponderate against this finding. While both parties knew that Son was interested in swimming [when the last parenting plan was entered], neither party claimed it was reasonable to anticipate the degree to which he would excel in and become devoted to the sport at that time. The testimony at the evidentiary hearing demonstrated that Son practices for swimming nine times per week for several hours at a time. His close friendships are with others who share his devotion to swimming as well as this demanding schedule. Indeed, swimming has become the basis for all of Son’s extracurricular activities and social relationships. His current school, Fairview High School, does not have a swimming team, and Son has not developed a circle of friends there. Both Son and Mother testified that Son spent most of his time swimming and did not interact much with friends in Fairview. Son has developed a circle of friends who attend MUS and are involved in swimming, and he has developed a very strong relationship with his stepmother, who has a background in swimming.
Based on the foregoing, the Court concluded the evidence does not preponderate against the trial court’s finding and, therefore, the trial court’s determination that a material change in circumstance occurred was affirmed.
Child’s Preference. Mother also argued the trial court erred by allowing Son’s preference to control the outcome of the best interests determination.
The preference of a child 12 years or older is one of many factors to be given consideration in determining the child’s best interests. This preference is not controlling on the trial court, and it is error for a trial court to base its decision solely on a child’s preference. There is good reason for this rule. While a child’s expressed preference may reflect legitimate and wise reasons, it may just as easily reflect manipulation by a parent or a successful campaign by one parent to alienate the child from the other parent. However, when the trial court is reasonably satisfied that a child has not been manipulated and the child’s reasons for his preference are not frivolous, it is permissible to give significant weight to the child’s testimony regarding the parent with whom the child wants to live. Furthermore, it is not error for a trial court to state a child’s preference was a “deciding factor” in its decision as long as it clearly weighed other factors and circumstances in reaching its decision.
After examining the record, the Court concluded:
[T]he trial court clearly considered the source of and reasons for Son’s expressed preference as part of a larger inquiry involving all the relevant statutory factors. In its order, the trial court stated it was satisfied that Son genuinely wanted to live in Memphis with Father for good reasons, including his desire to cultivate a group of friends there and to attend a school that promotes swimming. The evidence does not preponderate against the finding that Son’s preference was genuine and based on good reasons.
Both Son and the parties testified that Son had expressed this preference long before the evidentiary hearing took place. In part, Son’s preference was motivated by a desire to participate in a high school swimming team. While MUS has a swim team, Son’s current high school does not. Testimony revealed that there are benefits of being on a high school swim team including comradery, recognition from others, as well as the ability to win swimming awards and break records specific to high school swimming teams….
[T]he evidence does not preponderate against the trial court’s findings that Son’s expressed preference was genuine and based on sound reasons, including the promotion of his athletic and social development. As a result, the trial court did not err in giving significant weight to Son’s expressed preference….
We find that the trial court carefully examined the source of and reasons for Son’s expressed preference and, because it was satisfied that Son’s preference was genuinely his alone and based on good reasons, afforded that preference significant weight. However, the trial court did not base its decision solely on this important factor and instead included it as one of many other considerations. Because the trial court analyzed the reasons for Son’s preference and because that preference was only one of many factors considered, we find that the trial court did not err in its consideration of Son’s expressed preference.
Accordingly, the trial court was affirmed.
K.O.’s Comment: In their briefs, both parties cited the Tennessee Supreme Court decision in Armbrister v. Armbrister for the proposition that proving a material change in circumstance for purposes of changing the primary residential parent, i.e., changing custody, no longer requires a showing that the change was not reasonably foreseeable at the time the parenting plan was entered.
Both parties were wrong.
The issue in Armbrister was a modification of a residential parenting schedule rather than a modification of the designation of the primary residential parent. Because of this, the Armbrister opinion turned on the language of Tennessee Code § 36-6-101(a)(2)(C) rather than Tennessee Code § 36-6-101(a)(2)(B). Different sets of criteria exist for determining whether a material change in circumstances exists for a modification of a residential parenting schedule as compared to the standard that applies for a modification of custody.
To clear up any confusion, the Court in this opinion makes clear that the Tennessee Supreme Court decision in Armbrister, which applied directly to modifications of the residential parenting schedule, does not extend to modifications of the primary residential parent.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.