Mother and Father divorced in June 2012 in Tennessee. The parties had two children, and they agreed to split parenting time equally. However, the Mother was designated as the children’s Primary Residential Parent in the parenting plan. Shortly after the divorce, Mother enrolled the children in a school close to her home, and Father objected. The trial court entered an order on August 13, 2012, requiring the children to stay in their pre-divorce school, Homestead Elementary School (“Homestead”) in Cumberland County.

The Cumberland County Board of Education filed a motion to intervene and set aside the order, asserting that the Board’s policy provided that students were to be enrolled in the district in which the primary residential parent resides. The Court’s order violated that policy.

Father objected to the Board’s involvement, and he claimed that Mother’s “unilateral decision” violated their parenting plan when she attempted to enroll the children in a new school system. Father further requested to be designated the primary residential parent, stating that it was in the best interest of both children, and it would remove the Board’s objection to the children’s enrollment.

The trial court found that the children needed stability and that the Mother’s decision to change schools was contrary to the need for stability. The court found it was in the children’s best interest to designate the Father as primary residential parent, thereby allowing the children to remain enrolled in Cumberland County.

Mother appealed.

The trial court is required by statute to determine, prior to modifying a parenting plan, whether a material change in circumstances necessitates a change in custody in Tennessee. Trial courts are also required to make a finding as to the reason and facts supporting the decision to change custody.

Modification of an existing custody or visitation arrangement involves two steps: First, the parent requesting the modification must prove that a material change of circumstances has occurred. Secondly, if there has been a material change of circumstances, the court must determine whether a modification is in the child’s best interest.

Determining whether a material change in circumstances has occurred requires a different standard, depending on whether the parent is seeking to change custody (i.e. primary residential parent status) or simply to change the residential parenting schedule. Tennessee statutes establish a lower threshold for modifying the schedule. In this case, Father was requesting to become the primary residential parent, and, therefore, the higher threshold applies.

Tennessee Code Annotated §36-6-101(a)(2)(B) provides:

(B) If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

(i) In each contested case, the court shall make such a finding as to the reason and the facts that constitute the basis for the custody determination.

To determine whether a material change in circumstances has occurred, the court should consider whether:

(1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and (3) the change is one that affects the child’s well-being in a meaningful way.

In this case, the trial court failed to specifically identify any changed circumstances that warranted a change of custody. Mother’s decision to enroll the children in another school does not support the change. The Board’s policy regarding enrollment was readily available to both parents at the time of their agreement. Furthermore, it was entirely foreseeable and reasonably anticipated that the parents would live in different school zones. Therefore, Father failed to establish that a material change in circumstances occurred.

Garrett v. Garrett – E2012-02168-COA-R3-CV

Filed April 12, 2013

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