Facts: Mother and Father are the divorced parents of three children. Their agreed parenting plan designated Mother as the primary residential parent, provided for Father’s parenting time, and required joint decision-making.

Several years later, Father petitioned to change custody and reverse the parenting schedule citing his critiques of Mother’s parenting style and decision-making.

At the trial, it developed that the real issue was which school the children would attend. The trial court resolved this issue in Father’s favor and changed custody to Father.

The Court of Appeals concluded the trial court applied the wrong material-change standard and, therefore, reversed the change of custody and sent the case back to the trial court.

On remand, the trial court heard no further proof. Instead, it entered an order reiterating its original findings.

Once again, Mother appealed.

On Appeal: Once again, the Court of Appeals reversed the trial court.

A petition to change the primary residential parent of a child requires the court to consider a two-step analysis. The threshold question is whether a material change in circumstances has occurred since the entry of the prior custody order. Only if the court finds a material change in circumstances has occurred does it consider whether changing the primary residential parent is in the child’s best interest.

Although there are no bright-line rules for determining whether a material change has occurred, courts typically consider these factors:

• whether a change has occurred after the entry of the order sought to be modified;
• whether the change was not known or reasonably anticipated when the order was entered (this is only considered when changing the primary residential parent); and
• whether the change affects the child’s well-being in a meaningful way.

When considering a change of the primary residential parent designation, the proper standard for determining whether a material change has occurred is found at Tennessee Code Annotated § 36-6-101(a)(2)(B).

When considering merely a change in the parenting schedule, the proper standard for determining whether a material change has occurred is found at Tennessee Code Annotated § 36-6-101(a)(2)(C).

A repeat of the same reasoning by the trial court after the first reversal predictably led to the same outcome in this second appeal:

Tennessee Code Annotated § 36-6-101(a)(2)(B) provides that “[a] material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan.” The trial court in the case at bar held that Mother had failed to adhere to the parenting plan by “not [being] willing to participate in joint decision-making for the benefit of the education and athletic activities of the children.” Significantly, the parenting plan provides only that major decisions regarding education and extracurricular activities be made jointly. Neither party has violated or failed to adhere to the parenting plan by failing to come to an agreement regarding schools or sporting activities.

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This Court has held on several previous occasions the parties’ disagreement over schools was not a material change in circumstances sufficient to warrant a change in primary custodial parent. . . . In the present case, we likewise hold that the evidence preponderates against the trial court’s finding that Father demonstrated a material change of circumstances sufficient to change the primary residential parent. Father’s desire to enroll the children in a different school, precipitated by his own voluntary decision to move further from Mother and the children, does not rise to the level of such a change in circumstances.

The trial court’s judgment was reversed, and the original parenting plan with Mother as the primary residential parent was reinstated.

K.O.’s Comment: The material-change standard for changing the primary residential parent differs from that necessary to change the parenting schedule. First, the former requires that the change not be known or reasonably foreseeable when the parenting order was entered while the latter does not. Second, the former is described as a “more stringent standard” while the latter is a “very low threshold.” It is far easier to change a parenting schedule than it is to change the primary residential parent designation. Father requested a change in the primary residential parent designation, and his proof did not meet the standard required.

Newberry v. Newberry (Tennessee Court of Appeals, Eastern Section, June 20, 2018).