Facts: Mother and Father are the divorced parents of one child. Their agreed parenting plan designated Mother as the primary residential parent. When their parenting plan was later modified by agreement, Father, who was engaged to his fiancée, received 131 days of parenting time.

Father was in the military and subject to lengthy deployments. In October 2018, Mother petitioned to modify child support because Father was not exercising his parenting time.

Father counter-petitioned to change custody, alleging material changes such as his remarriage, their child was not excelling in school, Mother does not support Father’s discipline of their child after agreeing to do so, and Mother unreasonably refused to modify the parenting schedule informally.

Father presented no evidence that their child—a first grader—was struggling academically or having any academic issues.

Regarding Father’s claim that Mother does not support his discipline of their child, Father testified that he prohibited the child from having snacks before dinner to encourage the child to finish her dinner. He testified about an incident at a baseball game where he and Mother agreed their child would have no snacks before dinner. He observed the child plucking and eating a blueberry from Mother’s fruit snack. The child ate no other blueberries because Father promptly intervened.

The trial court found that nothing Father complained about constituted a material change in circumstances sufficient to change custody or the parenting schedule. Father’s counter-petition was denied.

Father appealed.

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

When a parent seeks to either change custody or the parenting schedule, the parent must first prove a material change of circumstances. Only once that threshold is met does the court determine whether the proposed change is in the child’s best interest.

The standard for a material change needed to change custody is much higher than the very low threshold required to change the parenting schedule.

Although there are no bright-line rules for determining when a change has occurred, Tennessee courts consider

• whether a change has occurred after the entry of the order sought to be modified,
• whether a change was not known or reasonably anticipated when the order was entered, and
• whether a change is one that affects the child’s well-being in a meaningful way.

Not every change in a child’s life or the life of his or her parents rises to the level of a material or significant change warranting a change in custody.

The Court agreed that Father did not meet the threshold requirement of a material change that would justify even considering whether a change of custody is in Child’s best interest:

Father was engaged to his current wife when the parties amended their parenting plan, so his remarriage was anticipated when the plan was amended. The child’s academic performance did not seem to be an issue by the time of trial, and Father introduced no evidence that Mother’s designation as the primary residential parent contributed to any difficulties the child had in kindergarten. Father failed to establish that Mother refuses to coparent with him or that she does not support his discipline of the child after the child moved to her care after leaving Father. Father also failed to establish that Mother denied him any time with the child to which he is entitled under the amended plan. . . . Instead of establishing that Mother denied Father any time with the child to which she was entitled, the evidence showed that Mother was generous and provided Father with more than he is entitled to under the plan. She allowed him to have more phone calls with the child then the plan calls for, including video calls when Father was deployed, and she sent him photos of the child when doing so is not required under the plan. Finally, Father failed to introduce evidence to support his assertion that the current schedule is not in the child’s best interest and should be modified due to her age.

The Court further agreed that Father did not even meet the very low threshold required to modify the parenting schedule:

Remarriage does not necessarily constitute a material change in circumstances.

To prove that he was entitled to a modification of the residential schedule, Father was required to establish a material change of circumstance that affected the child’s best interest. Father failed to make this showing.

Because Father failed to establish a material change of circumstances, it was unnecessary to assess the child’s best interest. The Court affirmed the trial court’s judgment.

K.O.’s Comment: One of the essential duties for lawyers is the provision of objective advice to the client. This often means telling the client what he or she does not want to hear. Candor and realism save the client unnecessary heartbreak, stress, and money.

A parenting plan will not be changed because of a triviality, e.g., a blueberry.

Allegations must be supported by competent evidence.

Not every loss in the trial court should be appealed.

Ballard v. Ballard (Tennessee Court of Appeals, Middle Section, April 9, 2020).