Parenting time in Tennessee is established in a permanent parenting plan entered by the court setting out the number of days allotted to each parent with one parent designated primary residential parent. The parenting plan also sets out decision making responsibility and other terms prescribed for each parent to adhere to. If a parent seeks to modify the parenting plan, he or she must prove by a preponderance of the evidence that there has been a “substantial and material change of circumstances.” There is no bright line definition for what constitutes a substantial and material change of circumstances as each matter is so fact dependent. The trial courts have wide discretion in adjudicating custody or parenting time cases.
The statute requiring a material change for a parenting schedule change, Tennessee Code Annotated § 36-6-101(a)(2)(C), provides:
(C) If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.
It used to be considered that a party would have to show that a particular material change in circumstance could not have been anticipated when the original parenting plan was entered by the court. The issue arose in Armbrister v. Armbrister, 414 S.W.3d 685 (2013), a post-divorce proceeding, as to whether a parent seeking to modify a residential parenting schedule in a permanent parenting plan must prove that an alleged material change in circumstances could not reasonably have been anticipated when the residential parenting schedule was originally established. Each parent were dentists, however the mother was found by the trial court to be the primary care giver and thus designated her as primary residential parent with 285 days and 85 days to the father. The father filed a motion to alter the permanent parenting plan stating he had remarried and that the mother was not willing to amend the parenting schedule. The parties were not successful at mediation which is often required before appearing before the court seeking a change. The father cited a number of material changes which included remarriage, relocation to a new residence, sale of dental practice, additional hours to be with the children, and increase in age of the children. The children were in their tender years at the time of the divorce. The son was three years old and daughter less than one year old at the time of the divorce. The trial court accepted these changes as substantial and material and issued a substantive memorandum. After finding that a material change in circumstances had occurred, the trial court had to determine whether modification of custody was in the child’s best interests using the factors enumerated in T.C.A. 36-6-106.The General Assembly has declared that the overarching “standard by which the court determines and allocates the parties’ parental responsibilities” after divorce is the “best interests of the child.” Id. § 36-6-401(a) (2010); see also id. § 36-6-106(a) (2010 & Supp. 2013) (stating that custody determinations “shall be made on the basis of the best interest of the child”) Father had his parenting increased to 143 days which resulted in a reduction of child support. Mother appealed and raised a single issue: whether the trial court erred in finding that a material change in circumstances had occurred which justified a modification of the initial parenting plan.
The court of appeals overturned the trial courts decision citing that none of the change of circumstances cited above were unanticipated. The majority thus concluded that Father had failed to establish that the move “was a material and unanticipated change which affected the children in a meaningful way.” It cited proof in the record that father knew he may be relocating, he was dating his wife at the time of the trial, and change of schedule was not significant. The Tennessee Supreme Court accepted father’s Tennessee Rule of Appellate Procedure 11 application for permission to appeal.
The appellate courts construed the custody statutes in a manner which “balanced the interests in finality and stability against the practical reality that changes may occur after the initial custody or visitation decree which necessitate modification.” See Ellis v. Carucci, 123 Nev. 145, 161 P.3d 239, 243 (2007) The overarching concern was that the trial courts would be inundated with post judgment petitions seeking relief that amounted to frivolity. Another line of authority also existed that a party attempting to prove a material change of circumstances would have to show that failure to modify the parenting plan would result in substantial harm to the child. In the evolution of cases clarifying what constituted a material change of circumstances and offering an analytical framework to answer that question, the issue of whether the particular change of circumstance could have been known or anticipated at the time of trial consistently arose. In 2004 the General Assembly amended the statute as stated above which included abrogating the requirement of showing substantial risk of harm to the child.
The Supreme Court, applying the statutes cited above, stated that it is not required that a party seeking modification must show that the material changes were not known or could not have reasonably anticipated. More specifically the court held as follows: “we conclude that when the issue is modification of a residential parenting schedule, section 36-6-101(a)(2)(C) provides the governing standard for determining whether a material change in circumstances has occurred. We further conclude that section 36-6-101(a)(2)(C) abrogates any prior Tennessee decision, including Blair, Kendrick, and Cranston,which may be read as requiring a party requesting modification of a residential parenting schedule to prove that the alleged material change in circumstances could not reasonably have been anticipated when the initial residential parenting schedule was established. Consistent with section 36-6-101(a)(2)(C), we hold that facts or changed conditions which reasonably could have been anticipated when the initial residential parenting schedule was adopted may support a finding of a material change in circumstances, so long as the party seeking modification has proven by a preponderance of the evidence a material change of circumstance affecting the child’s best interest.” Tenn.Code Ann. § 36-6-101(a)(2)(C) (2010).”
The court found that the material changes cited by father identified above were in fact a material change of circumstances. It found that father’s relocation thirty minutes further from mother’s home adversely impacted the amount of parenting with the children. It further found that the increase in age of the children was a material change. It also noted father’s reduction in work schedule that afforded more time with the children. Father’s proof was aimed at establishing a material change in circumstances based upon “significant changes in the needs of the child[ren] over time, which may include changes relating to age” and “significant changes in the parent’s living or working condition that significantly affect parenting[.]” Tenn.Code Ann. § 36-6-101(a)(2)(C). The court made an interesting note on the issue of remarriage. It cited the following holding: “the possible change in home environment caused by such remarriage is a factor to be considered in determining whether or not there has been a material change in circumstance.” Tortorich v. Erickson, 675 S.W.2d 190, 192 (Tenn.Ct.App. 1984).”The character, attitude and general personality of other persons who would be in a position to influence the children are important considerations for the court.” Id. (quoting Riddick v. Riddick, 497 S.W.2d 740, 742 (Tenn.Ct.App.1973)). The court went on to uphold the trial court’s second decision which is the next and necessary step in the evaluation of whether to modify parenting time which is the best interest analysis cited above utilizing the factors in section 36-6-106(a). See Tenn.Code Ann. § 36-6-101(a)(2)(C); id. § 36-6-401(a). The court held that there was no evidence to preponderate against the trial court’s findings that it was in the children’s best interest to have additional time with the father. This analysis also follows the statutory goal directing the court to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10), the location of the residences of the parents, the child’s need for stability and all other relevant factors.” Id. § 36-6-106(a).
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