Facts: Mother and Father agreed to a permanent parenting plan in 2019 that named Mother the primary residential parent and gave them joint decision-making in all major areas. Although the plan recited 182.5 days for each parent, the detailed schedule gave Father less residential time.
Both parents later sought modification after Mother announced plans to relocate with Child to Washington, where her husband was stationed. Mother abandoned the relocation request shortly before trial after another court refused to allow one of her other children to relocate.
Father sought designation as primary residential parent, substantially more residential time, and sole educational decision-making. Mother agreed that circumstances had changed but argued that the change justified only an adjustment to the residential schedule, not the higher threshold change in primary residential parent. Both parents described the other as a good parent who loved Child, and the trial court found that Mother had performed somewhat more of the day-to-day parenting responsibilities.
Education became the central issue. Despite joint educational decision-making, Mother first enrolled Child in a school using an address where she and Child did not live and later enrolled Child in virtual school without Father’s knowledge or agreement. Father learned about the virtual placement only after school began. After he objected and asked that the placement be reconsidered, Mother enrolled Child in the virtual school again the next year.
Father testified that the virtual program provided only a few hours of teacher interaction each day, left much of the remaining instruction to Mother while she balanced work and family obligations, had a lower academic rating than available in-person schools, and coincided with Child’s math grade falling from straight As to a C. He also expressed concern about the lack of in-person socialization during the school day. Mother defended the program’s quality and pointed to virtual-class interaction and Child’s contacts with cousins, friends, and a home-school social group.
Credibility was also a focus. Mother had previously pleaded guilty to two counts of aggravated perjury arising from the original parenting litigation (!!!), and the trial court found several of her explanations at the modification trial not credible. The court found that she had made multiple unilateral parenting decisions contrary to the plan and had misled Father about Child’s schooling. It viewed her prior perjury together with more recent conduct as evidence of an ongoing problem with truthfulness.
The trial court also focused on continuity. Mother had moved several times, had previously proposed moving to Mississippi, and had recently sought to move to Washington, while Father had remained in the same home since 2019. The court was concerned that Mother’s marriage to a servicemember stationed across the country and her pattern of moves and proposed moves created a continuing risk of instability for Child.
The trial court found a material change in circumstances and determined that Child’s best interest favored Father, especially under the factors addressing compliance with court-ordered parenting arrangements, Child’s developmental and educational needs, parental fitness, and continuity. It named Father primary residential parent, gave him 245.5 residential days and Mother 119.5 days, awarded Father sole educational decision-making, ordered Mother to pay $418 monthly child support, and awarded Father $27,160 in attorney’s fees and costs.
Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court’s judgment in full.
Tennessee courts apply a two-step analysis to a request to modify a parenting plan: the court first determines whether a material change in circumstances has occurred and, if so, then determines whether modification serves the child’s best interest.
Where the requested modification would change the primary residential parent, Tennessee law requires the petitioner to prove a material change in circumstances by a preponderance of the evidence; the change need not create a substantial risk of harm to the child and may include failures to adhere to the parenting plan or circumstances that make the plan no longer in the child’s best interest. Courts consider whether the change occurred after the existing order, was not known or reasonably anticipated when the order was entered, and affects the child’s well-being in a meaningful way.
A change in “custody” equates to a change in the primary residential parent designation. The burden for changing the primary residential parent is more demanding than the burden for modifying only the residential schedule.
A parent’s remarriage or relocation, standing alone, is not a material change of circumstances sufficient to justify a change in custody, though either may serve as the underlying catalyst for such a change.
Credibility findings based on live testimony receive considerable deference because the trial court is uniquely positioned to observe witnesses, and such findings will not be disturbed absent clear and convincing evidence to the contrary.
Considering the trial court’s order as a whole, the Court of Appeals held that Mother’s repeated unilateral educational decisions, their adverse effect on Child’s education and socialization, and the related credibility and stability concerns established a material change and supported the best-interest determination:
Mother’s refusal to adhere to the joint educational decision-making required by the parties’ parenting plan was certainly not anticipated at the outset and evidence at trial demonstrated that it caused harm to the child. . . . The trial court was plainly extremely concerned about the decision Mother made regarding the child’s education and the injuries caused thereby, her manner of making that decision in contravention of the parenting plan, her untruthfulness in connection with that decision, and the deficiency of her performance of the role of educator in the home-schooling virtual school that she had independently decided upon for her son. Additionally, the trial court also made findings regarding the instability Mother’s choices had caused for her child and the deficiencies as to her moral fitness for parenting, expressing particular concern about Mother’s recurring lack of truthfulness.
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The trial court did not simply find that the child had changed schools and there were differences between the two schools. The trial court’s ruling reflects an understanding that the change of schools impacted the child’s academic education and socialization in a meaningful and adverse manner.
Ultimately, having considered the trial court’s findings and the record in light of the arguments presented to us, we conclude that the evidence does not preponderate against the trial court’s finding that there was a material change in circumstance sufficient to change the primary residential parent from Mother to Father.
Mother also challenged the trial court’s weighing of the best-interest factors. The Court of Appeals explained that a best-interest determination is fact-sensitive, and the relevance and weight assigned to each factor depend on the unique facts.
The Court of Appeals found no abuse of discretion. Mother’s unilateral school decisions excluded Father from his court-ordered role and adversely affected Child’s education and socialization. The trial court also could credit Father’s testimony about the virtual program, consider Mother’s prior perjury as part of a broader and continuing truthfulness problem, and view her pattern of moves and proposed moves as a threat to future stability.
While there are imperfect aspects of the trial court’s analysis and reasonable minds could differ as to the overall conclusion, the record simply does not support Mother’s contention that the trial court abused its discretion in concluding that making Father the primary residential parent was in the child’s best interest.
Mother also challenged the trial court’s award of $27,160 in attorney’s fees and costs to Father. While Father failed to plead for attorney’s fees, he expressly requested them in closing argument. But Mother never challenged the fee award in the trial court, thereby waiving the issue.
Here, Mother has pointed us to nothing in the record to demonstrate that she challenged the attorney’s fee award before the trial court. From our review of the record, we have found no indication that she challenged the award. Having failed to do so, we conclude that Father is correct that Mother has waived this issue.
The Court of Appeals affirmed the trial court’s ruling in its entirety.
K.O.’s Comment: (1) Father proved more than a disagreement over educational philosophy. He connected the disputed placement to child-specific evidence, including the school’s comparative rating, Child’s falling math grade, limited teacher contact, and reduced in-person interaction. Lawyers challenging a school decision should bring admissible, child-specific proof. Generalized claims that one school or educational model is “better” may not establish a meaningful effect on the child.
(2) A school change alone should not automatically become a custody change. What mattered here was the combination of unilateral enrollment, concealment, repetition after objection, diminished academic performance, socialization concerns, and proof that stronger in-person alternatives were available. The effect on the child is critical.
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