Facts: Mother and Father are the divorced parents of five children.

At the time of divorce, Mother was designated the primary residential parent for two children who resided with her in Tennessee. Father was designated the primary residential parent for the other three children who moved with him to Montana. Each was awarded 80 days of parenting time with the children in the other parent’s custody. They shared joint decision-making authority over major decisions concerning the children.

Mother sought custody of the children in Father’s care. As a material change of circumstance, she alleged Father violated the terms of the parenting plan by removing the children from school and deciding to homeschool them, a decision that should have been made by both parents under the terms of the parenting plan.

At trial, Father admitted removing the children from public school and placing them in a homeschool program because he felt they were too advanced for the curriculum taught in public school. He admitted that he failed to consult with Mother in making this decision.

The trial court found the children in Father’s care were doing well and that no material change in circumstance had occurred.

Mother appealed.

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

Tennessee courts must apply the two-step analysis in Tennessee Code Annotated § 36-6-101(a) to requests for modification of the primary residential parent or the residential parenting schedule. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred must the court determine whether modification is in the child’s best interest.

A material change in circumstance with regard to a residential parenting schedule is a distinct concept from a change in circumstance with regard to custody. If a parent requests a modification of custody, also known as a change in the primary residential parent, then the parent must prove by a preponderance of the evidence a material change in circumstance. A material change in circumstance in this context may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child. Although there are no hard and fast rules for determining when a material change in circumstance has occurred, trial courts often consider (1) whether the change occurred after entry of the order sought to be modified; (2) whether the change was known or reasonably anticipated when the order was entered; and (3) whether the change affects the child’s well-being in a meaningful way.

The threshold for establishing a material change in circumstance where the issue before the court is a modification of the residential parenting schedule is much lower. The petitioner still must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest and, like a material change for modification of the primary residential parent, the change must have occurred after entry of the order sought to be modified. However, unlike the standard for a change of primary residential parent, whether the change was reasonably anticipated when the prior residential parenting schedule order was entered is irrelevant. To modify a residential parenting schedule, merely showing that the existing arrangement is unworkable for the parties is sufficient to satisfy the material change of circumstance test.

After considering the record, the Court reasoned:

Although violation of a non-custodial parent’s visitation rights can establish a material change in circumstance in some situations, the record lacks evidence that Father’s violations affected the children’s well-being in a meaningful way….

Father undisputedly acted in contravention of the parenting plan—which grants joint educational decision-making authority to both parents—when he decided to remove the children from school without consulting Mother. Tennessee Code Annotated § 36-6-101(a)(2)(B) contemplates that such a violation can constitute a material change in circumstance. However, as discussed above, not every such violation will rise to the level of a material change in circumstance necessary to change the primary residential parent designation. In this instance, we find that Mother failed to prove by a preponderance of the evidence that the change in the children’s education affected their well-being in a meaningful way.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: This case is consistent with other Tennessee cases that hold where the failure to follow the parenting plan is shown to have affected the child’s well-being in a meaningful way, it is a material change justifying reconsideration of the parenting plan. For some examples, see the opinions in Hansen v. Hansen and Reed v. Reed.

Where — as here — the failure to follow the parenting plan is not shown to have affected the child’s well-being in a meaningful way, then the failure does not constitute a material change of circumstances. For some examples, see the opinions in Pace v. Pace and Greenwood v. Purrenhage.

Burnett v. Burnett (Tennessee Court of Appeals, Middle Section, August 31, 2015).

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