Facts: Mother and Father, the parents of one child, divorced after nine years of marriage. Their parenting plan designated Mother as the primary residential parent, awarded Father 160 days of parenting time and provided for joint decision-making.

Four years later, Father petitioned to become the primary residential parent, citing these material changes, among others:

• Mother refused to engage in joint decision-making,
• Mother failed to get the child to school regularly,
• Mother restricted Father’s communications with their child,
• Mother made disparaging remarks about Father in front of the child, and
• Mother failed to inform Father of the child’s medical appointments.

Mother filed a counter-petition to modify the parenting schedule by reducing Father’s parenting time, alleging that Father refuses to follow the parenting plan and cannot engage in joint decision-making.

Finding that the parties stipulated that a material change in circumstance exists because both parties alleged material changes, the trial court granted Father’s petition, named him the primary residential parent, and gave him sole decision-making authority.

Mother appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Before Tennessee courts can consider whether it’s in a child’s best interest to modify a parenting plan, the parent seeking the modification must prove a material change in circumstances.

Tennessee Code Annotated § 36-6-101(a)(2) contains two standards for material changes:

(B)(i) If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or any order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

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(C) If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. A material change of circumstances does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parents living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.

Tennessee courts interpret the statute to require a higher burden of proof when the petitioner seeks a change in custody, i.e., a change in the primary residential parent, than when the petitioner seeks only a change in the existing parenting schedule. Thus, the quality and quantity of proof differ depending on the change requested.

Here, because Father sought a change in custody, he had a higher burden of proof to establish a material change than did Mother, who sought only a modification in the parenting schedule.

There are no bright-line rules for determining when a change of circumstances is deemed material enough to justify changing custody. These decisions turn on the unique facts of each case. Tennessee courts require that the changed circumstances

• affect the child’s well-being in a material way,
• arose after the entry of the order sought to be modified, and
• were not reasonably anticipated when the order was entered (note: this is not required when a parent only aims to change the parenting schedule).

Because the trial court failed to distinguish between the two standards for a material change, the Court of Appeals vacated the change of custody:

In holding that the parties stipulated to a material change in circumstance, the trial court failed to delineate between the standard for modification of custody and modification of the parenting schedule. In the first instance, the parties did not, in fact, stipulate to anything. A “stipulation” is defined as “a voluntary agreement between opposing parties concerning some relevant point; an agreement relating to a proceeding, made by attorneys representing adverse parties to the proceeding.” Here, the parties did not agree, i.e., stipulate, to the same material change in circumstances. Rather, each averred different changes in circumstances. In contrast to a stipulation, an “averment” is defined as “a positive declaration or affirmation of fact; an assertion or allegation in a pleading.” While one party’s averment may serve as a stipulation for one purpose, i.e., to establish a material change to modify the parenting schedule, it does not, ipso facto, serve as a stipulation for another party’s purpose, i.e., to establish a material change to modify custody. Such is the case here.

In mischaracterizing the parties’ averments as stipulations, the trial court failed to enforce the parties’ respective burdens of proof.

The Court vacated the trial court’s change of custody and remanded the case back to the trial court to determine whether each party satisfied their respective burdens of proof regarding a material change in circumstances.

Tutor v. Tutor (Tennessee Court of Appeals, Western Section, March 10, 2020).