Facts: Mother and Father, the parents of three children, divorced in 2009. Mother was designated the primary residential parent. Father received 90 days of parenting time.

In 2012, Mother petitioned to modify the parenting schedule because Father had moved to Texas. Father responded with a counter-petition requesting a change of custody.

At trial, both parties testified there’d been a material change of circumstance. Mother asked that Father’s parenting time be reduced to the number of days he was actually spending with the children, i.e., 60 days, and that he bear all transportation expenses. Father asked that he be designated the primary residential parent and that Mother receive 80 days of parenting time.

The trial court found there was not a material change of circumstances and, therefore, denied both parents’ requests for modifications to the parenting plan.

Father appealed.

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

Father argued the trial court erred by finding there was not a material change in circumstance sufficient to justify a change of custody. Alternatively (and curiously), Father argued the trial court erred by finding there was not a material change in circumstance sufficient to justify a change in the parenting schedule, which is the relief Mother requested.

Tennessee courts apply a two-step analysis to requests for either a modification of the primary residential parent or the parenting schedule. The threshold issue is whether a material change in circumstance has occurred. A change in circumstance justifying a change in the parenting schedule is a distinct concept from a change in circumstances justifying a change in the primary residential parent.

If a change in the primary residential parent is sought, the petitioning parent must prove a material change pursuant to Tennessee Code Annotated § 36-6-101(a)(2)(B). Although there are no hard and fast rules for determining when a material change in circumstance has occurred, the factors include: (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.

If a modification of the parenting schedule is sought, Tennessee Code Annotated § 36-6-101(a)(2)(B) sets a very low threshold for establishing a material change in circumstance. 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. Merely showing that the existing arrangement is unworkable is sufficient to satisfy the material change of circumstance test for parenting schedule modification.

Once the threshold question is answered with a finding that a material change of circumstance has occurred, the trial court must determine the child’s best interest.

After reviewing the record, the Court found the evidence did not prove a material change sufficient to change custody, as Father requested. Anyone want to guess what the Court found?

The trial court found no material change of circumstance sufficient to modify the residential parenting schedule. The court reasoned that Mother and Father anticipated one or both would relocate from Tennessee. However, whether parents anticipated circumstances warranting modification does not, by itself, prohibit a material change finding. . . .

The greater convincing effect of the evidence is that a material change of circumstance has occurred. Seven years have passed since the entry of the permanent parenting plan, which suggests the possibility for changes. Both Mother and Father agreed at mediation that a material change of circumstance had occurred, and both testified that the parenting plan was no longer workable. . . .

These changes proven at the hearing were material under the lower threshold of Tennessee Code Annotated § 36-6-101(a)(2)(C). Therefore, the trial court should have considered, consistent with the requirements of Tennessee Code Annotated §§ 36-6-106(a) and -404(b), whether a change in parenting time was in the children’s best interest.

The trial court’s finding that there was no material change of circumstance sufficient to modify the parenting schedule was reversed. The case was remanded back to the trial court to consider the children’s best interest.

K.O.’s Comment: Mother never filed a brief or made any appearance on appeal. She ended up getting the relief she wanted without even trying. I don’t recall ever seeing that before.

Wilkerson v. Wilkerson (Tennessee Court of Appeals, Middle Section, May 19, 2016).

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