Facts: Mother and Father divorced in 2021 with an agreed permanent parenting plan (“PPP”) naming Mother as the primary residential parent of their three young children. Under the PPP, Mother had 237 parenting days to Father’s 128 days, and Father paid monthly child support. Major decisions on education, healthcare, etc., were to be made jointly, although the PPP gave Mother final say on education as long as Mother or her family paid the private school tuition. At the time of divorce, the children were enrolled in a private school.

Less than a year later, Father petitioned to modify the parenting plan, seeking equal parenting time and joint custody. He alleged a material change in circumstances, specifically that the children’s needs had evolved with age, both parents’ living situations had changed (Mother had moved to a new home with her soon-to-be husband), and disputes about schooling.

The crux of Father’s petition was the school issue: for convenience, Mother wanted to transfer the two older children from their longtime private school to a local public school that her stepchildren attended. Father disagreed and even paid the private school’s re-enrollment fees himself to keep the children there.

Father’s proposed plan made them “Joint Primary Residential Parents” with equal time and gave Father final decision-making authority for education and activities. Father also sought to reduce his child support and requested attorney’s fees.

Mother opposed the modification. She denied any material change in circumstances so soon after the divorce. She argued the children’s needs had not significantly changed in the few months since the PPP was entered and claimed the existing schedule was working well.

Mother admitted to enrolling the children in a public kindergarten camp during her parenting time and applying to enroll them in public school for the upcoming year, but she maintained these decisions were in the children’s best interests and within her authority since her family had been covering the private school tuition.

Father supplemented his petition with allegations of civil contempt. He claimed Mother willfully violated the PPP’s joint decision-making provision by unilaterally enrolling the children in the public school and a summer program without his agreement. Later, Father filed additional contempt claims accusing Mother of changing the children’s health insurance coverage (after Mother remarried, she switched the kids onto her new husband’s insurance) and stopping one child’s allergy shots without consulting him.

The trial court initially denied Father’s request to change the parenting plan, finding no material change in circumstances. However, the court found Mother in contempt for not adequately consulting Father on certain decisions and warned that continued failures to consult could result in Father being granted final decision-making authority.

Before a final order was entered, a new judge took over the case. The new judge granted Father’s petition and made sweeping changes. The trial court’s final order changed the primary residential parent from Mother to Father, instituted an equal-time schedule, gave Father sole final decision-making power over all major decisions, and modified child support (ordering Mother to pay support and making it retroactive to the date of Father’s petition). The court also found Mother in contempt on three counts and ordered her to pay Father’s attorney’s fees of $88,116. (!!!)

Mother appealed.

On Appeal: The Court of Appeals vacated the change of custody and most of the trial court’s orders.

In Tennessee, a parent seeking to change the primary residential parent, i.e., custody, must prove a material change in circumstances under TCA § 36-6-101(a)(2)(B), which is a more stringent standard than the “very low threshold” for modifying a parenting schedule under § 36-6-101(a)(2)(C). In other words, changing which parent has custody is considered a “drastic” remedy requiring significant changes, whereas tweaking the residential schedule can be done with a lesser showing.

Here, the trial court mistakenly used the easier standard for modifying a schedule, even though Father’s request and the court’s order actually changed the primary residential parent.

The Court of Appeals held the trial court abused its discretion by applying the wrong legal standard. The change of the primary residential parent should have been evaluated under the higher material-change standard of subsection (B), not the lower standard of subsection (C) for schedule changes. Because of this error, the appellate court vacated the custody modification and the resulting changes to child support:

In the first instance, Father’s qualifying notations that his request to be named joint residential parent is “only by agreement,” and “presupposes an equal parenting schedule,” do not change the fact that he seeks a change in the primary residential parent designation, i.e., he seeks a change in custody. Indeed, this is the relief the trial court granted…. Change of the primary residential parent is a change in custody, not a change to the parenting schedule. As such, TCA § 36-6-101(a)(2)(C), which the trial court applied, is inapplicable…. Having applied an incorrect legal standard, the trial court abused its discretion in granting Father’s petition for modification of the PPP. As such, we vacate the trial court’s order modifying the PPP and its entry of a modified Child Support Worksheet.

The Court of Appeals vacated the modified parenting plan, thereby undoing the custody change and related child support adjustments. The Court also vacated all three civil contempt findings and the $86,000 attorney’s fee award based on them because the Court found Mother never willfully violated the trial court’s orders.

On remand, if Father still wishes to pursue a modification, the trial court must apply the correct legal standard under § 36-6-101(a)(2)(B) and make proper findings.

K.O.’s Comment: This case is a reminder of how crucial the “material change” standard is in post-divorce custody matters. Tennessee law sets a high bar for changing the primary residential parent after a divorce. Here, Father was less than a year out from the parties’ agreed parenting plan when he tried to change custody. Judges understandably don’t want to flip custody arrangements on a whim; stability for children is important. Minor disagreements or shifts in life—like one parent moving a few miles away or squabbling over school choices—usually won’t cut it.

A practical takeaway for lawyers is to frame the relief you seek carefully. Father asked to be “joint primary parents,” which in effect meant a custody change. That choice triggered the stricter legal standard. Had he instead requested only a more balanced timeshare without changing the primary parent designation, the outcome might have been different, since a lower threshold applies to adjusting the schedule while leaving custody intact. If your goal is equal time, you might achieve it more easily if you don’t insist on altering the custody label.

Source: Smithwick v. Smithwick (Tennessee Court of Appeals, Western Section, November 12, 2025).