Facts: Mother and Father divorced in 2010, at which time Mother was named the primary residential parent of their three children.

Four years later, Father petitioned to change custody. Father alleged Mother was “making poor parenting decisions,” did not assist the children with their homework, allowed their oldest daughter to be alone with her boyfriend in her bedroom, and discussed the litigation with the children.

The trial court found a material change in circumstances and that a change of custody would be in the children’s best interest. The trial court granted Father’s petition and designated him as the primary residential parent.

Mother appealed.

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

A petition to change the primary residential parent of a child requires the court to conduct a two-step analysis. The threshold question is whether a material change in circumstances has occurred since the entry of the prior child custody order. Only if the court finds a material change in circumstances has occurred does it proceed to consider whether changing the primary residential parent is in the children’s best interest.

Although there are no bright-line rules for determining when a material change has occurred, there are a few important factors to 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 the child’s well-being in a meaningful way.

There are two standards for material changes.

Tennessee Code Annotated § 36-6-101(a)(2)(B) applies when modifying the primary residential parent. It says:

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.

Tennessee Code Annotated § 36-6-101(a)(2)(C) applies when changing a parenting schedule. It says:

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.

The Court concluded the trial court applied the standard for changing a parenting schedule even though it was changing the primary residential parent designation, explaining:

The trial court’s memorandum and order relies on Armbrister, a case involving the modification of a parenting schedule, not a modification of the primary residential parent. The trial court also stated that, “under the present law that change [of material circumstances] may have actually been anticipated.” This statement of the law is applicable to modifications of a parenting schedule, not to modifications of the primary residential parent. The trial court further asserted that a change of circumstances could arise from changes such as “a change in employment or a change in marital status.” Tennessee Code Annotated section 36-6-101(a)(2)(C), the subsection governing modifications of the residential parenting schedule, specifically lists “significant changes in the parent’s living or working condition that significantly affect parenting.” From the language used by the trial court, we must conclude that the court applied the standard set out in Tenn. Code Ann. § 36-6-101(a)(2)(C), which applies to modification of the residential parenting schedule, not modification of the primary residential parent, which is governed by Tenn. Code Ann. § 36-6-101(a)(2)(B). Thus, we agree with Mother’s argument that the trial court applied the wrong legal standard to the facts of this case.

In light of this conclusion, we must vacate the trial court’s decision and remand the case to allow the trial court to decide the issues under the proper legal standard, namely that set out in Tenn. Code Ann. § 36-6-101(a)(2)(B).

Accordingly, the trial court’s ruling was reversed.

K.O.’s Comment: I always cover this issue in my annual seminars because it is a common error. There are significant differences between the two standards. Tennessee caselaw explains the -101(a)(2)(B) standard is the “more stringent standard” because changing child custody, which the caselaw equates with a change in the primary residential parent designation, is a “drastic remedy.” Conversely, the -101(a)(2)(C) standard is considered to be a “very low threshold.” Tennessee family law attorneys and trial courts must take care to understand the differences and prepare accordingly.

Newberry v. Newberry (Tennessee Court of Appeals, Eastern Section, May 2, 2016).

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