Facts: Mother and Father are the divorced parents of two children. When they divorced, the trial court entered an agreed permanent parenting plan granting equal parenting time to each parent on an alternating week basis but designated Mother the primary residential parent of both children.

Years later, the relationship between Mother and Daughter became strained, and the parties agreed to let Daughter stay exclusively with Father for an extended period of time. Months later, Father filed a petition for modification of custody. He proposed that Mother’s parenting time occur on alternating weekends and certain holidays.

Father criticized Mother’s belief that the children were old enough to stay at home alone in the afternoons. He also introduced Daughter’s testimony that she would prefer to live with Father for various reasons.

After considering all the evidence, the trial court concluded that Father failed to demonstrate a material change of circumstances. As such, the trial court denied Father’s petition to modify the parenting plan.

The trial court attached to its ruling an unsigned parenting plan it would have entered if a material change of circumstances had taken place. The unsigned plan designated Father the primary residential parent of both children and granted Mother 141 days of parenting time each year.

Father appealed.

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

At the time of a divorce involving at least one minor child, the trial court must make an initial custody determination on the basis of the best interests of the child. When a parent files a petition to modify custody, the parent seeking the modification must demonstrate that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. Thus, the decision to modify custody is a two-part test.

As a threshold issue, the trial court must determine whether there has been a material change in circumstances since the previous custody determination. If the court finds that a material change in circumstances has occurred, the court must proceed to the second step of the analysis to determine whether the modification sought is in the child’s best interest. If the court finds that a material change in circumstances has not occurred, it is not required to make a best interests determination and must deny the request for a change of custody.

Tennessee Code Annotated § 36-6-101(a)(2)(B) sets forth the standard a petitioning parent must meet to prove a material change in circumstance sufficient for consideration of whether custody modification is in the best interest of the child:

(B) If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance 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 bright-line rules for determining whether such a change has occurred, there are several relevant considerations: (1) whether the change occurred after the entry of the order sought to be modified; (2) whether the change was not known or reasonably anticipated when the order was entered; and (3) whether the change is one that affects the child’s well-being in a meaningful way.

Father argued that the trial court’s unsigned parenting plan designating him as the primary residential parent shows the trial court found it to be in the children’s best interest that Father be designated the primary residential parent. Father contended this implicit finding triggered Tennessee Code Annotated § 36-6-101(a)(2)(B), which states that a material change of circumstance may include “circumstances that make the parenting plan no longer in the best interest of the child.”

In other words, Father argued that the finding that a modification would be a child’s best interest constitutes a material change of circumstances in and of itself.

After reviewing the record, the Court commented:

Father’s argument is premised on an interpretation of Section 36-6-101(a)(2)(B) that would allow petitioning parents to prove a material change of circumstances by establishing that modification is in the child’s best interest. This interpretation of the statute, however, would nullify the material change of circumstances prong of the two-part test to modify custody. Although, meeting the best interests of the child is an overarching concern in allocating parental responsibilities following a divorce, the material change of circumstances requirement serves an important purpose. The concept of requiring a parent seeking modification to prove a material change in circumstances originated out of this Court’s recognition that existing parenting orders are considered res judicata on the facts as they existed at the time that the most recent order was entered. In that regard, the requirement “promotes finality, prevents inconsistent or contradictory judgments, conserves judicial resources, and protects litigants from the cost and vexation of multiple lawsuits.” It would be a great inconvenience to the litigants, the courts, and the public, if either party, as often as he or she chose, could re-litigate questions of custody or support on the same or substantially similar facts. Additionally, the requirement serves the courts’ interests in preserving stable custodial relationships for the child and discouraging divorced parents from using the child as a pawn in their ongoing conflicts through repeated petitions to modify custody. As such, we reject Father’s argument. The decision to modify custody is a two-part test, and a petitioning parent must prove each part separately before a prior custody determination may be modified. Accordingly, we conclude that because Father failed to prove a material change of circumstances in this case, the trial court correctly denied his petition to modify.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: Kudos to Father’s lawyer for asserting a rather creative argument. As the Court noted, if decisions to modify custody were based solely on meeting the child’s best interests without regard for whether a material change of circumstances had occurred, parents could force modification of their custody arrangement as often as the child’s custodial preference changed in a case where the other best interest factors weighed equally in favor of each parent. The requirement that petitioning parents demonstrate a material change of circumstances prevents such a scenario.

Canada v. Canada (Tennessee Court of Appeals, Western Section, September 4, 2015).

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