Facts: Shortly after the parties’ divorce, Father was designated the primary residential parent of Child and Mother received 125 days of parenting time.

Two years later, Father petitioned to modify the schedule to reduce Mother’s parenting time to 80 days. He alleged that Mother was failing to exercise her parenting time as ordered.

Mother admitted she did not exercise all of her parenting time in the past, but complained that Father scheduled activities during her parenting time. She also chose not to enforce her parenting time on occasions when Child did not want to visit with her.

After three years of what the Court describes as “extensive and acrimonious litigation,” the case was finally tried.

Father testified that Mother had been exercising 125 days of parenting time for a little over a year, and he believed 125 days was appropriate.

Child, who was 17 years old at the time of the hearing, expressed a preference for minimal parenting time with Mother.

The trial court modified the parenting schedule to give Mother 90 days of parenting time. The trial court also awarded Father his attorney’s fees in the amount of $32,000.

Mother appealed.

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

Mother argued the trial court abused its discretion in reducing her parenting time to 90 days when even Father agreed she should receive 125 days.

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the arrangement must prove that a material change in circumstances has occurred. If a material change in circumstances has occurred, the trial court must then determine whether a modification is in the child’s best interest.

The determination of whether a material change in circumstance occurred requires a different standard depending on whether a parent is seeking to modify custody, i.e., change the primary residential parent designation, or modify the parenting schedule. A lower threshold is required for modification of a parenting schedule.

First, the Court affirmed the trial court’s finding that a material change of circumstances sufficient to change the parenting schedule had occurred. Specifically, the record confirms that Mother’s attempts to exercise her parenting time were thwarted by either Father’s scheduling of activities or Child’s desire not to visit with Mother.

The Court affirmed the reduction of Mother’s parenting time from 125 days to 90 days:

The order in this case contains sufficient findings as to the reason and the fact that constitute the basis for the custody determination. The order also reflects the court’s performance of the appropriate two-step analysis. Here, the court crafted a plan that adequately represented the Child’s best interest, while also ensuring that Mother was given specific inconsistent co-parenting time before [] Child reached the age of majority. With these consideration in mind and recognizing the court’s broad discretion, we hold that the record supports the court’s modifications.

Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) The entirety of the Court’s analysis of the change in parenting time is contained in the block quote above. It would be more helpful to lawyers and litigants if the Court had explained its reasoning instead of providing only conclusory statements.

(2) Here, the trial court awarded Mother less parenting time than what even Father requested. Compare this with McDaniel v. McDaniel, where the trial court abused its discretion by awarding the mother 39 days less than what even the father proposed.

Kennedy v. Kennedy (Tennessee Court of Appeals, Middle Section, June 23, 2017).

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