Facts: When Mother and Father divorced in 2011, they entered an agreed parenting plan they gave them equal parenting time and designated Mother as the primary residential parent. The plan provided that once Child reached school age, they would decide where he would attend school.

After the divorce, Mother moved to Clarksville while Father remained in Columbia.

A few years later, Mother petitioned to modify the parenting plan because the original plan did not specify where Child would live once he started school. Although Mother and Father filed competing proposed parenting plans, Father did not file a counterpetition to be named the primary residential parent.

Each parent proposed that Child would live with them during the school year while the other parent would have visitation every other weekend.

After hearing, the trial court changed the primary residential parent from Mother to Father for the upcoming school year. Mother was awarded visitation. The trial court invited Mother to file another petition to change custody at the end of the school year.

Mother appealed.

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

Tennessee courts apply a two-step analysis to requests for either a 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 adopted the current parenting plan. Only if a material change has occurred does the court consider whether a modification is in the child’s best interest.

Although there are no hard and fast rules for determining when a material change has occurred, factors the courts consider 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.

Not every change in circumstance is a material change; the change must be considered significant before it will be considered material.

To further complicate things, the material change needed to modify the residential parenting schedule is different from the material change needed to modify custody. The material change needed to change the residential parenting schedule is considered a low threshold. Conversely, the material change needed to modify custody is considered a much more stringent standard.

To modify a residential parenting schedule, merely showing that the existing arrangement is unworkable is sufficient to satisfy the low threshold for finding a material change.

After reviewing the record, the Court concluded the proof supported a material change to modify the residential schedule but not enough to change the primary residential parent designation:

We conclude the preponderance of the evidence in this case does not establish that a material change has occurred sufficient to modify the primary residential parent. We recognize that [Child] has reached school age, and the current plan does not direct where he will attend elementary and middle school. Landon’s changing age, however, does not constitute a material change in circumstance sufficient to change the primary residential parent. Likewise, Father’s testimony that Mother allowed [Child] to call his step-father “Daddy” and to miss a small number of phone calls during baseball season is insufficient evidence of a material change. Although interference with the parent-child relationship can be a material change sufficient to modify the primary residential parent, the evidence in this record does not rise to that level.

We find the proof in this record, however, does establish a material change that meets the lower standard required for modification of the residential parenting schedule. Given the distance between the parents’ homes, the need to enroll [Child] in school, and the obvious failure of the parents to reach an agreement, there is sufficient proof that the alternating weekly residential schedule in the current plan is unworkable.

Thus, the trial court’s judgment was reversed and the case remanded for the court to determine a residential parenting schedule that is in the best interest of the child. In other words, Mother will remain the primary residential parent.

K.O.’s Comment: (1) While it’s understandable that, at the time of divorce, the parties opted to kick the can down the road regarding which school the child would attend, the best course of action usually is to confront those issues head on. Postponing a tough decision doesn’t make it go away; it usually just puts off the inevitable litigation for awhile.

(2) This is another case that illustrates my pet peeve: treating the supposedly meaningless PRP designation as a substantive award of “custody” when the parents share equal time. In equal time cases, neither parent is the primary residential parent as that term of art is defined in Tennessee Code Annotated § 36-6-402(4). If we are only designating a primary residential parent for state and federal statutes and certain insurance policies that require a determination of “custody,” as Tennessee Code Annotated § 36-6-410 states, why are the courts treating it as a substantive award of custody?

(3) I kind of understand the argument for using the higher material change standard for custody changes when one parent goes from equal time to less-than-equal time, as happened here and in Rigsby v. Edmonds. But to use that standard to disregard the trial court’s determination of the child’s best interest when there is no change in parenting time, as happened in Garrett v. Garrett, makes no sense to me. I wish the Court of Appeals would pay more attention to this issue. When the child’s best interest, as determined by a judge, isn’t followed because of a meaningless designation that’s required for wholly unrelated reasons, that is a problem for children in Tennessee.

Williamson v. Lamm (Tennessee Court of Appeals, Middle Section, September 30, 2016).

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