Facts: Father and Mother divorced in Virginia in 2021. The Virginia court awarded them joint legal custody of Child, designated Mother as the primary residential parent, and gave Father parenting time on alternating weekends, every Wednesday evening, holidays, and during summer vacation. Both parents later moved to Knoxville, and the Virginia court directed that future enforcement and modification proceedings occur in Tennessee. The Virginia order was registered in Knox County Chancery Court in 2023.

Father petitioned to modify the parenting schedule. He alleged that Mother refused to co-parent, made unilateral decisions about Child’s schooling and activities, withheld information about educational assessments, and excluded him from medical decisions despite his being a physician. He also complained that the order did not address fall and spring break or maximize his parenting time. Father first sought equal time and designation as joint primary residential parent, but his revised proposal kept Mother as the primary residential parent and requested 135 days of parenting time.

Mother counter-petitioned for final decision-making authority and an end to Father’s Wednesday-night parenting time.

After a two-day hearing, the trial court announced an oral ruling and later entered a written order dismissing both petitions because there was no material change of circumstances. The written order did not incorporate the oral ruling or include detailed findings of fact and conclusions of law.

Father appealed.

On Appeal:  The Court of Appeals vacated the trial court’s order and remanded for reconsideration under the correct legal standard for modifying a residential parenting schedule.

Because the parties ultimately sought only to modify the residential schedule, not to change the primary residential parent, TCA § 36-6-101(a)(2)(C) governed the material-change inquiry. Under that statute, the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting Child’s best interest, without having to prove a substantial risk of harm.

A qualifying change may include significant changes in Child’s needs over time, significant changes in a parent’s living or working conditions that affect parenting, failure to follow the parenting plan, or other circumstances making a change in residential parenting time consistent with Child’s best interest.

Importantly, TCA § 36-6-101(a)(2)(C) allows consideration of changes that reasonably could have been anticipated when the original schedule was entered, i.e., changes that were reasonably foreseeable.

When parents seek to change “custody” or the primary residential parent, however, a different, more stringent standard applies: the material change must be something that was not reasonably foreseeable.

The trial court treated unforeseeability as a required element of a material change. For example, it said:

The first burden that has to be overcome, is there a material change of circumstance? And what we have to look at, [Father], in that very statement is, is there a change that is material, that is significant that was not foreseeable at the time this order was implemented. See what I’m saying. Well, [in the Virginia order] they talk about you coming to Tennessee. They talk about all the moves. They talk about the mother coming here. They talk about you all being here. They talk about we don’t want it anymore, it belongs in Tennessee. So all the stuff in the order that [the Virginia trial court] did, everything about us being here today was foreseeable.

The Court of Appeals explained why this was not harmless error:

[U]pon careful review, we determine that the trial court’s conclusions were inextricably intertwined with the court’s understanding that the purported change of circumstance could not be considered material if it was foreseeable when the [Virginia] Custody and Visitation Order was entered. Thus, we determine that the trial court could not reasonably have reached the same conclusion had it applied the [correct] standard to the analysis.

The Court of Appeals did not hold that a material change occurred. Instead, it vacated the trial court’s order and directed the trial court to decide that question under the correct legal standard.

K.O.’s Comment: Foreseeability is not the test. When the requested modification touches only the residential schedule, don’t bother with whether the change could have been predicted. A foreseeable change can still be material. The questions are whether circumstances have actually changed since the last order and whether the proven change affects the child’s best interest. Building your proof around foreseeability, or letting the other side reframe the case that way, invites the exact error that undid the trial court here.

Source: Brown v. Brown (Tennessee Court of Appeals, Eastern Section, August 28, 2026).

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