Facts: Mother and Father are the divorced parents of two daughters. The operative parenting plan has Father living with the children in Texas and Mother exercising 129 days of parenting time over extended school breaks and several long weekends.

Four years later, when the daughters were 12 and 10 years old, Mother petitioned to change the parenting plan because Father was not following it, the children were approaching an age where their physical and emotional changes “would be better handled and nurtured” by Mother, and the children wanted to live primarily with Mother. Mother proposed that Father receive 100 days of parenting time.

The trial court found both parents to be “equally fit and proper parents” capable of parenting the minor children. Specifically, the trial court said the comparative fitness analysis was “basically a tie,” Mother “is now capable” of fulfilling her parental role by caring for the children in her home, and the children’s “increased age and gender” support designating Mother as the primary residential parent. Thus, primary custody changed from Father to Mother.

Father appealed.

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

Tennessee courts apply a two-step analysis to requests to change the primary residential parent designation. The threshold issue is whether a material change in circumstance has occurred since the entry of the previous parenting plan. If it has, only then does the court consider whether changing the parenting plan is in the child’s best interest.

Tennessee Code Annotated § 36-6-101(d) says, “It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.”

Father argued the trial court erred by considering Mother’s gender. The Court agreed:

We observed that the trial court’s order provides very few findings of fact and scant reasoning to explain those findings or why they constitute a material change in circumstances justifying a modification of the parenting plan. Nevertheless, one of the few findings of fact provided by the trial court to support its determination that a material change in circumstances had occurred was related to gender. The trial court clearly considered Mother’s gender as a factor in favor of changing custody and making her the primary residential parent…. This presumption by the trial court is contrary to the stated intent of Tenn. Code Ann. § 36-6-101(d). Our General Assembly has made this policy determination, and we must apply it. We, therefore, conclude that the trial court misapplied the law when determining whether a material change in circumstance had occurred and the best interest of the children by arriving at and applying a presumption in favor of Mother due to her gender.

Furthermore, even assuming that the trial court’s remaining two findings of fact, (1) that Mother was now able to take care of the children in her home, and (2) that the children were now older, constitute material changes in circumstance, we still must reverse the trial court’s modification of the [Parenting] Plan given that it found that the best interest factors were “basically a tie between the parents.” We emphasize that when a petition to change custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstances has occurred, and (2) that a change in custody or residential schedule is in the child’s best interest. Mother bore the burden of proving that a change in the [Parenting] Plan was in the children’s best interest. Based on the face of the order, Mother did not carry her burden. The trial court did not find that it was in the best interest of the children for Mother to now have custody but rather that it was “basically a tie” and that both parents were “equally fit and proper parents capable of parenting the minor children.” The trial court’s best interest analysis was inconclusive in that it failed to find that the best interest factors weighed in favor of one parent over the other. Without more, we cannot conclude that the trial court properly made a best interest determination justifying custody modification of the [Parenting] Plan.

The Court reversed the trial court’s modification of the parenting plan.

K.O.’s Comment: Compare this case with Wilson v. Phillips, where the trial court found: “Given the children are all females, Mother would meet the emotional and developmental needs of the children better than Father. This factor moderately favors Mother in the best interest analysis.” There, without comment, the Court said, “We agree with the trial court’s findings regarding this factor.”

Source: Rushing v. Rushing (Tennessee Court of Appeals, Eastern Section, September 14, 2023).

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