In Estes v. Estes, No. M2010-02554-COA-R3-CV, the father and mother had twin boys and a girl when they divorced. Mother was designated primary residential parent ("PRP"). Later, father filed a Petition to Modify the Parenting Plan citing mother's move to another county, alleging this required the twins to change schools.
Under Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003), a petitioner must prove that (1) a material change of circumstances occurred; and (2) a change of custody or residential schedule is in the child's best interest. The Tennessee Supreme Court also set out 3 considerations: (1) a change has occurred after the entry of the order to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether the change affects the child's well-being in a meaningful way.
The trial court here modified the parenting plan, giving the parties equal time with the twins and making both parents PRP. The daughter's plan was unaltered. The trial court held the mother's move constituted a material change in circumstances due to the complications it created regarding the children having to change schools. The mother appealed.
The mother argued that under both T.C.A. § 36-6-101(a)(2)(B) and (C), no material change of circumstances existed. T.C.A. §36-6-101(a)(2)(B) pertains to modification of the court's prior decree declaring the PRP. T.C.A. §36-6-101(a)(2)(C) pertains to a modification of the court's prior decree pertaining to a residential parenting schedule. For a court to change the PRP under subsection (B), there must be a more substantial change of circumstances than to change the schedule but keep the PRP the same under subsection (C).
The appellate court held the evidence supported a material change of circumstances under both sections, because the equalization of parenting time lessened certain difficulties arising with the mother's move. Further, the twin boys reached an age where they could benefit from additional time with their father hunting and playing sports. Also, mother's move jeopardized the children's ability to stay in their school. This was enough to constitute a material change of circumstances justifying a change in the parenting plan and PRP for the twins. Yet the court noted that a change to or from an equal parenting schedule will not always have an effect on the PRP designation.
Therefore, the appellate court affirmed the trial court's decision to modify, but overruled the decision to designate both parents primary residential parent. T.C.A. § 36-4-402(5), requires one designated primary residential parent. T.C.A. § 36-6-402(4) defines a primary residential parent as the parent who spends over 50% of the time with a child. In cases where parents share equal time, a primary residential parent is still required because T.C.A. § 36-6-410 mandates that a child have a primary residential parent for all state and federal statutes that require a custody determination, even if no primary residential parent exists in reality. Since the trial court's ruling designating both parents as a primary residential parent did not comply with this statutory requirement, the appellate court designated the father as the primary residential parent of the twin boys for school zone purposes. Tennessee divorce attorneys should note that having two PRPs is not proper.