Finding of No Material Change Reversed in Cookeville, TN Parenting Plan Modification: Cook v. Cook

Facts: When Mother and Father divorced in 2010, they agreed to a parenting plan that allocated 96 days of parenting time to Father.

In 2014, Father moved to modify the parenting plan to award him equal parenting time. Father alleged a material change of circumstances has occurred, namely his work schedule changed to allow him to work a more traditional schedule, both parties remarried, and Child had started school since the entry of the previous parenting plan.

After a hearing, the trial court ruled Father failed to show a material change of circumstances, reasoning “Father has not shown that any of the purported changes argued by Father actually affected the child’s best interest.”

Father appealed.

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

In considering whether to modify a residential parenting schedule, Tennessee courts must first determine if a material change in circumstances has occurred. If the court finds a material change in circumstance affecting the child’s best interest has occurred, the court must next apply the “best interest” factors of Tennessee Code Annotated § 36-6-106(a) in order to determine how, if at all, to modify the residential parenting schedule.

With respect to a petition to modify a residential parenting schedule, Tennessee Code Annotated § 36-6-101(a)(2)(C) states that a material change of circumstances:

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.

A material change in circumstances does not require a finding of substantial harm to the child. The Tennessee Supreme Court has explained that Tennessee Code Annotated § 36-6-101(a)(2)(C) sets “a very low threshold for establishing a material change of circumstances” when a party seeks to modify a residential parenting schedule.

After reviewing the evidentiary record, the Court concluded:

After reviewing the evidence, we find this case meets the “very low threshold” for modification of a parenting plan outlined by our legislature in Tenn. Code Ann. § 36-6-101(a)(2)(C). Our Supreme Court has acknowledged the General Assembly’s “policy decision to make it easier to establish that a material change in circumstances has occurred’ when a party seeks to modify a residential parenting schedule.” Here, Father has presented evidence on nearly every point Tenn. Code Ann. 36-6-101(a)(2)(C) identifies as a potential reason for changing a residential schedule. Father has had a significant change in his working condition that affects parenting. Father testified that his work schedule at the time of divorce affected his time with the child because it was “tiresome” working the midnight shift and affected his ability to spend evenings with the child. Father testified that his new work schedule has given him more flexibility and allows him to have most evenings at home with his family.

In addition, both Father and Mother testified that the parties have failed to adhere strictly to the parenting plan…. Father also asserts his remarriage and the subsequent birth of his daughter are factors that weigh in favor of finding a material change in circumstances. The testimony shows that Father’s remarriage has affected his parenting in a positive way…. We find these circumstances constitute a material change in circumstances as contemplated by Tenn. Code Ann. § 36-6-101(a)(2)(C); therefore, we hold that the trial court erred in failing to find a material change in circumstances had occurred.

Accordingly, the trial court’s judgment was reversed and the matter remanded to the trial court for the best interest analysis pursuant to Tennessee Code Annotated § 36-6-106(a).

K.O.’s Comment: This outcome is consistent with Tomlin v. Leamon, where a change in the father’s work schedule that allowed the children to spend more time with him was held to be material change under § 36-6-101(a)(2)(C).

Cook v. Cook (Tennessee Court of Appeals, Middle Section, December 9, 2015).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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