The Mother and Father had one child and divorced in 2011. While the divorce was pending, the Father moved to Florida due to his military employment, and the Mother was designated as the child’s temporary primary residential parent. During their separation, the parties shared parenting time equally, and the court noted that the schedule had worked well. At the final hearing, the trial court designated the Father as the child’s Primary Residential Parent, and the child was allowed to move to Florida with the Father at the end of the school year. The court stated in its decision: “It is the desire of this court for Mother to enjoy equal parenting time with the Father in the event she relocate[s] to the State of Florida.”

After the divorce was finalized and this order was entered, Mother decided to relocate to Florida. Therefore, in March 2012, she filed a petition with the trial court to modify the parenting plan. The child was residing with Mother until the end of his school year, so the child and Mother were both still living in Tennessee at this time. Mother sought only equal parenting time, not a change of custody (or the Father’s Primary Residential Parent designation).

The child moved to Florida at the end of the school year in May 2012. Mother relocated to Florida in June 2012, and retained housing approximately 2 miles from the Father.

A trial was scheduled for August 2012, and the child had been residing in Florida for approximately 13 weeks by that time.

The child’s counselor testified that, after the Father’s move to Florida, the child became upset about being away from either parent for a significant period of time. The counselor testified that, based on her work with the child, the child’s best interest would be served by the parents sharing equal time with the child.

The court found that the Mother’s relocation to Florida was a material change in circumstances, and the court modified the parties’ parenting plan to allow the parents equal parenting time on an alternating weekly basis. The Father remained the Primary Residential Parent.

Father appealed this decision, but the Court of Appeals affirmed the trial court’s decision.

The threshold issue in a trial to modify a parenting plan is whether there has been a material change of circumstances affecting the child’s best interest since the existing parenting plan was put into place. Once the court determines that there has been a material change of circumstances, the court must fashion a parenting plan that is in the child’s best interest.

To modify the current residential schedule, the petitioner has a burden to prove by a preponderance of the evidence that the material change of circumstance, “which may include, but is not limited to, significant changes in the needs of the child over time . . . 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.” Tenn. Code Ann. §36-6-101(a)(2)(C). The statute dealing with a change in residential schedule “sets a very low threshold for establishing a material change of circumstances. Indeed, merely showing that the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstances test.” Rose v. Lashlee, 2006 WL 2390980.

Father argued that the Mother’s move to Florida was anticipated by the trial court at the time the permanent parenting plan was entered (and it was, therefore, not a material change in circumstances). The Court of Appeals disagreed. Although the trial court expressed a desire for the Mother to have equal parenting time if she were to move to Florida, the trial court believed at that time that the Mother intended to move to New York, not Florida.

The court noted that just because “a circumstance might have been foreseeable when the decree sought to be modified was entered does not, by itself, prevent a finding of change in circumstances.” Therefore, the trial court’s statement encouraging the Mother to move to Florida is not a proper basis to conclude that the Mother’s move was reasonably anticipated at the time the parenting plan was entered.

At the time of the divorce, the distance between the Father (in Florida) and the Mother (in Tennessee) prevented a continuation of their equal parenting time. In light of the distance, the Mother was granted three day weekends and other extended parenting time. However, once the Mother moved to Florida, only two miles away from the Father, the previous impediments to her parenting time were no longer present.

Tennessee Code Annotated §36-6-101(a)(2)(C) expressly states that “significant changes in the parent’s living or working condition that significantly affect parenting” constitute material changes in circumstances for purposes of changing the parenting schedule (not custody).

The Mother’s living and working conditions were significantly changed by her move to Florida, and Mother was able to visit more easily with the child.

Therefore, the Mother’s move constituted an adequate material change of circumstances for adjusting the residential schedule.

In this case, the trial court’s order did not indicate that modification of the residential schedule was in the child’s best interest. Instead, the order stated that a material change in circumstances had been proven, and the court simply modified the parenting plan to allow equal time for both parents. Because of this omission, the Appellate Court remanded the case to the trial court to make these findings of fact, and the modification stayed in place pending further orders of the court.

Iman v. Iman:
2013 WL 7343928

Commentary: The primary reason the Mother was able to claim a material change in circumstances had occurred to due her relocation is that she was only requesting a change in the residential parenting schedule, not a change in custody. Tennessee’s Relocation Statute recognizes this difference, and states in Tenn. Code Ann. §36-6-108, that “Nothing in this section shall prohibit either parent from petitioning the court at any time to address issues, such as, but not limited to, visitation, other than a change of custody related to the move.”

If you are considering a relocation and want to modify your child’s parenting schedule, contact our office today to schedule a FREE CONSULTATION.

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