Facts: Mother and Father divorced in 2012. Their parenting plan designated them as “co-primary residential parents” of their two children, and they shared equal parenting time. The parenting plan provided that Father is designated the primary residential parent for purposes of federal and state statutes.

Father remarried and had another child. Mother moved in with the children’s female pediatrician.

Because of ongoing problems complying with their parenting plan, Mother petitioned to modify the parenting plan and be designated the primary residential parent. Father counter-petitioned for the same designation.

The trial court found the current parenting plan was not working in the best interest of the children. Specifically, the parents were constantly arguing over parenting time, the children’s activities, and the other parent’s failure to communicate with or consult the other parent regarding decisions about the children’s educational, medical, or extracurricular activities.

The trial court also observed that Mother was living with the children’s female pediatrician, commenting:

Dr. Jones has no legal obligation to continue to support the mother and the children and should the relationship sour or something happened to Dr. Jones, the mother and the children would be without a home.

The trial court designated Father as the primary residential parent and awarded frequent parenting time to Mother.

Mother appealed.

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

Tennessee Code Annotated § 36-6-402(4) defines the primary residential parent as “the parent with whom the child resides more than 50% of the time.”

When parents share equal time, neither parent meets the statutory definition of a primary residential parent.

Even though there may be no primary residential parent in fact, Tennessee Code Annotated § 36-6-410 states that the designation of a primary residential parent is necessary “solely for the purpose of” compliance with state and federal statutes and insurance policies that require a determination of “custody.”

The primary residential parent designation in equal-time cases is significant because it establishes the standard for determining whether a material change exists to modify the parenting plan.

When a modification changes the primary residential parent designation, the material change must satisfy the “more stringent standard” of Tennessee Code Annotated § 36-6-101(a)(2)(B).

When a modification does not change the primary residential parent designation, the material change need only meet the “very low threshold” of Tennessee Code Annotated § 36-6-101(a)(2)(C).

What level of material change is required when, as here, neither parent fits the statutory definition? The Court determined the “very low threshold” applied because Father had the primary residential parent designation solely for purposes of state and federal statutes:

In this case, it appears as though both parties sought to modify the parenting plan to become exclusive primary residential parent, even though there should have been only one primary residential parent named in the first place. This is relevant to our standard of review applied to subsequent modifications. Although the trial court and the parties went along with the questionable notion of “co-primary residential parent,” Father was in fact the primary residential parent because of the language designating him as such for the purposes of [state and] federal statutes. Therefore, we will proceed with our analysis under the view that, rather than changing custody, the trial court simply increased Father’s and decreased Mother’s visitation time.

After applying this standard to the trial court’s findings, the trial court’s judgment was affirmed.

Concurrence: Judge Susano wrote separately to comment on the trial court’s characterization of Mother’s relationship with the children’s female pediatrician:

The majority correctly notes “[t]he trial court also was concerned with Mother’s financial dependence upon Dr. Jones and contrasted that arrangement with Father’s independence and relative stability.” I do not understand why Father’s situation is considered to be more stable than that of Mothers. Both parents appear to be living in stable environments. I don’t believe it is appropriate to speculate how on either situation will last. While Dr. Jones could put Mother and the children out of her house, the stable situation that Father is currently in could change tomorrow. Simply stated, I do not understand why the trial court was critical of Mother’s living arrangement with Dr. Jones.

K.O.’s Comment:  I am a longtime critic of the caselaw giving substantive effect to the primary residential parent designation required by Tennessee Code Annotated § 36-6-410 “solely for the purpose of” certain state and federal statutes. When will this mess get fixed? Click here to read my recent commentary on this subject.

Bell v. Bell (Tennessee Court of Appeals, Eastern Section, May 18, 2017).

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