Facts: Mother and Father are the never-married parents of Child. In April 2018, the trial court entered an agreed parenting plan that resolved all issues except child support. Mother received 237 days of parenting time, and Father received 128.
Two months later, in June 2018, the parties entered an agreed order resolving child support. That same day, Father petitioned to modify the parenting plan to increase his parenting time.
Father argued that changes in his work schedule and college major, along with his decision to stop teaching jujitsu classes, constituted a material change in circumstances.
Father presented no proof as to what his previous work schedule was or when it changed. Likewise, he presented no evidence about his school schedule as compared to the prior one, and there was no evidence as to when he changed his major. Regarding the jujitsu classes, Father testified he was no longer an instructor but did not say when he stopped teaching.
Notably, there was little to no evidence presented regarding how the alleged changes in Father’s circumstances affected Child.
The trial court found that the hours of Father’s employment were mostly the same, he was still mainly working nights, and he was still attending school. The trial court found Father failed to establish a material change in circumstances affecting Child’s best interest, and Father’s petition was dismissed.
On Appeal: The Court of Appeals affirmed the trial court.
To modify a parenting plan, the petitioner must prove a material change of circumstance affecting the child’s best interest, and the change must have occurred after entry of the order sought to be modified.
A material change to modify a parenting schedule may include significant changes in the needs of the child over time, including changes related to age, changes in the parent’s living or working conditions that affect parenting, failing to follow the parenting plan, etc.
If a material change is found, the court must then determine whether modifying the parenting plan is in the child’s best interest, considering the factors found in Tennessee Code Annotated § 36-6-106(a).
Not every change in the circumstances of either a child or a parent will qualify as a material change. The change must be significant before it will be considered material.
Father’s first mistake was filing his petition to modify on the very day the parenting plan he sought to modify became a final order:
In our view, there could not have been a material change in circumstances at the time that Father filed his petition to modify because the [parenting plan] order had only become a final order that very same day. The facts used to establish a material change in circumstances sufficient to modify a residential parenting schedule must occur after the entry of the plan to be modified.
Father’s second mistake was failing to provide enough information to support his allegations:
Even assuming arguendo that the relevant time frame for determining whether a material change of circumstances had occurred began running from the April order, there is insufficient evidence in the record to support Father’s claim that such a change occurred. . . . Without evidence in the record, it is impossible for us to know when the alleged changes occurred. It was Father’s burden to produce evidence sufficient to establish that a material change in circumstances had occurred—we cannot engage in speculation, conjecture, or surmise to make such a determination.
As the trial court observed, Father was still working multiple jobs, was still working nights, and was still attending school. There has been no change in relationship status for Father, nor has there been any relocation or career change. His mother is still keeping Child during his work hours and while Father is attending school. . . . No evidence before us relates to how Father’s alleged change in circumstances has impacted Child.
The trial court’s dismissal of the petition to modify the parenting plan was affirmed. After finding that Mother “should not be required to bear the financial burden of Father’s actions,” Mother was awarded her attorney’s fees on appeal.
K.O.’s Comment: Even though the material change standard for modifying a parenting schedule, found at Tennessee Code Annotated § 36-6-102(a)(2)(C), is considered a “very low threshold,” it is not so low as to be automatic. Family-law attorneys are cautioned not to take it as a given.