Facts: Mother and father are the never-married parents of Child. A parenting plan was entered designating Mother as the primary residential parent and granting Father 103 days of parenting time.
Several years later, Father petitioned to modify the parenting plan. Mother counter-petitioned to modify the parenting plan.
The trial court heard proof that both parties failed to adhere to the parenting plan. For example, Father was allotted 2-3 telephone calls with Child each week, but those calls did not always occur. There was evidence that Mother traveled with Child to Canada for a weekend without notifying Father.
After hearing, the trial court found a material change in circumstance sufficient to change custody. After considering Child’s best interest, the trial court entered a parenting plan changing the primary residential parent to Father and granting Mother 130 days of parenting time.
On Appeal: The Court of Appeals reversed the trial court.
To modify a parenting plan, Tennessee courts must engage in a two-step analysis. The threshold issue is whether a material change in circumstance has occurred since the court’s prior custody order. Only after it is determined that a material change in circumstance has occurred must the court determine whether modification is in the child’s best interest.
Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors for consideration include
- whether the change occurred after entry of the order sought to be modified,
- whether the change was known or reasonably anticipated when the order was entered, and
- whether the change affects the child’s well-being in a meaningful way.
A material change in circumstance regarding a change to the parenting schedule is a different concept from a change in circumstance with respect to a change of custody. The material change necessary to reconsider the parenting schedule is considered a “very low threshold” while the change necessary to reconsider the primary residential parent designation is considered a “more stringent standard.”
For example, to modify the parenting schedule, merely showing that the existing arrangement has proven unworkable is sufficient to satisfy the material change of circumstance test.
After reviewing the record, the Court concluded the proof did not establish a material change of circumstance sufficient to change custody:
The specific difficulties cited by the court here, however, are not of such a character or magnitude that, standing alone, would support a change in the primary residential parent; rather, they relate directly to the workability of the parenting plan and are more appropriately addressed by modifying the plan. . . .
No specific evidence relating to whether the changes in circumstances affected [Child’s] well-being was presented . . . .
[T]he matters cited by the court or more appropriately addressed in modifying the parenting schedule, rather than changing the designation of primary residential parent. The evidence preponderates against the court’s finding that Mother’s trip to Canada or the difficulties with Father’s phone visitation constituted a material change sufficient to modify custody.
Thus, the trial court’s judgment changing the primary residential parent designation was reversed.
K.O.’s Comment: Lawyers and judges often confuse the material change standards needed to modify either the parenting schedule or the primary residential parent designation. For some recent examples, see Newberry v. Newberry and Williamson v. Lamb.
To modify child custody, a.k.a. the primary residential parent designation, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). This is considered the more stringent standard because changing the primary residential parent is a comparatively more drastic remedy.
To modify other parts of a parenting plan, such as the parenting scheduling, one must travel under the standard found in Tennessee Code Annotated § 36-6-101(a)(2)(B). As mentioned above, this is considered a very low threshold.
Here’s a handy slide I use each year in my Tennessee Family Law Update seminars:
Also, lawyers often overlook the necessity of proving how the change in circumstance is affecting the child’s well-being in a meaningful way. For example, see Kelly v. Kelly.
Remember, parenting plans are not modified “just because.” The lawyer must prove, and the trial court must find, a material change in circumstance sufficient to allow the court to consider the type of relief the lawyer requests. As part of this, the lawyer must show a significant impact on the child. If the lawyer glosses over step one (material change) on his or her way to step two (child’s best interest), the lawyer invites reversal on appeal.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.