Modification of Residential Parenting Plan: Material Change in Circumstances and Best Interests of the Child

November 13, 2012
By The McKellar Law Firm, PLLC on November 13, 2012 12:02 PM |

In Fillers Crum v. Fillers, No. E2011-01885-COA-R3-CV (Tenn. Ct. App. Oct. 11, 2012), Tennessee divorce attorneys learn how Tennessee courts determine whether a modification of a residential parenting plan is warranted by determining whether a material change in circumstances has occurred and by assessing the best interests of the child.

The facts are as follows: The parties married and had three children. The parties agreed that Father would pay child support and have visitation on regularly scheduled holidays, every Tuesday and Thursday for five hours, and every other weekend. Under the plan, each party was entitled to 182.5 days with the children, with Mother designated primary. Five years later, issues pertaining to the plan arose. Father failed to reasonably communicate, inform Mother of changes in his employment, pay child support, or visit with the children on holidays; also, he claimed the children on his income tax returns, behaved inappropriately and used inappropriate language in the children's presence, and had improper relations with a woman who was married (who also insulted Mother in front of the children). On account of the aforementioned reasons, Mother filed to modify the parenting plan to decrease Father's visitation, obtain a greater amount of child support, and hold Father in contempt.

After mediation failed, the parties had a hearing. Mother mentioned the above grounds and also alleged that one of the children was injured while with Father and that Father failed to maintain electricity at his home and neglected to maintain the children's life insurance coverage. In 2005, a pending domestic abuse case had resulted in the children's three-month placement in State Custody; however, Mother stated that there had been no other issues since that one incident. Mother complained about Father's failure to follow the designated visitation schedule and failure to relinquish the children in a timely manner several times; however, Mother conceded that "the procedure for exchanging the children had improved since the filing of her petition for modification." She also provided Father with more visitation time throughout the week than Father was granted under the Plan. Mother resided with her second husband in a five-bedroom home; her husband was financially stable and had no criminal background. Both Mother and her new husband were on prescription medication. The trial court held that there had been a material change in circumstances. It provided Father with only 80 days of co-parenting time and Mother with 285 days. The court also raised Father's child support. The court held father in contempt for violating the parenting plan by claiming the children on his tax return and by failing to maintain life insurance.

The Tennessee Court of Appeals considered only one issue: "whether the trial court erred in modifying the parenting plan by awarding Father with less than equal co-parenting time." Citing to case law from our jurisdiction, the appellate court explained: "When a petition to change or modify custody is filed, the parent seeking the change has the burden of showing (1) that a material change in circumstances has occurred and (2) that a change of custody or in the residential schedule is in the child's best interest." The following factors indicate that a material change in circumstances has occurred: (1) a change happened after the order was entered; (2) at the time of the order's entry, this change was not "reasonably anticipated"; (3) the change "affects the child's well-being in a meaningful way."

The court alleges that in this case, Mother only wished to modify the residential parenting schedule--not custody. As such, Mother "must prove by a preponderance of the evidence a material change of circumstance affecting the child's best interest. [It] 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 interests." Tenn. Code Ann. § 36-6-101(a)(2)(c).

The appellate court affirmed the existence of a material change in circumstances since Father made insulting statements regarding Mother and did not follow the plan. For assessing the best interests of the child, the court listed Tenn. Code Ann. § 36-6-404(b) factors including: "the relative strength, nature, and stability of the child's relationship with each parent...; willingness and ability to facilitate and encourage a close and continuing parent-child relationship with the other parent...; the disposition of each to provide food, clothing, medical care, education...; the degree to which a parent has been the primary caregiver...; the importance of continuity and the length of time the child has lived in a stable, satisfactory environment; evidence of physical or emotional abuse, the character and behavior of any other person who resides in or frequents the home of a parent and their interactions with the child; the reasonable preference of the child if 12 or older...; each parent's employment schedule..." Since Mother provided Father with greater visitation time than the parenting plan mandated, and since Father did not provide a proposed parenting plan, the Appellate Court upheld the trial court's adoption of Mother's proposed plan.