Modification of Custody vs. Modification of Parenting Schedule

Different sets of standards exist for determining whether a material change in circumstances exists for a modification of custody as compared to the standard that applies for a modification of a residential parenting schedule.  “It is easier to establish that a material change in circumstances has occurred when the parent only seeks to modify the residential parenting schedule.” Canada v. Canada, 2015 Tenn. App. LEXIS 720, at *14 n.2 (Tenn. Ct. App. Sept. 4, 2015) (internal quotations and citations omitted).

Modification of Custody

The parent seeking modification of custody must prove by a preponderance of the evidence that a material change in circumstance exists. “There is no bright line rule for determining when a change in circumstance is material enough to warrant changing an existing custody arrangement. Instead, when making this determination, courts should consider: (1) whether a change has occurred after the entry of the order sought to be modified; (2) whether a change was not known or reasonably anticipated when the order was entered; and (3) whether a change is one that affects the child’s well-being in a meaningful way.  A material change in circumstance does not require a showing of a substantial risk of harm to the child.  Such a change includes circumstances that make the parenting plan no longer in the best interests of the child.”  Robinson v. Robinson, 2015 Tenn. App. LEXIS 121, at *3 (Tenn. Ct. App. March 16, 2015) (internal quotations and citations omitted); see also Canada, 2015 Tenn. App. LEXIS 720, at *14 (noting that a material change in circumstance may include failures to adhere to the parenting plan or an order of custody and visitation or circumstances that no longer make the parenting plan in the best interest of the child).

Robinson notable factors:

  • The child preferred to live with his father.
  • The child was older.
  • The child had built a good relationship with his stepmother.
  • The child became a highly competitive swimmer since the parenting plan had been entered. The school the child attended did not have a swim team, but the school he would attend if he lived with his father had a swim team. The father had to be designated as the primary residential parent in order for the child to attend this school.

Modification of Parenting Schedule

Modification of the parenting schedule “has very low threshold for establishing a material change of circumstances.”  Armbrister v. Armbrister, 414 S.W.3d 685, 703 (Tenn. 2013).  A parent seeking modification of the parenting schedule is not required to prove that the material change of circumstance giving rise to the request was unanticipated at the time the residential parenting schedule was originally established, so long as the parent has proven by a preponderance of evidence that a material chance of circumstance exists affecting the child’s best interest.  Id. (noting that changes relating to a child’s age or parent’s living or working conditions may constitute a material change in circumstances).

Armbrister notable factors:

  • The father sold his practice, moved closer to the children, and worked fewer days. This allowed him more flexibility with his schedule so that could spend more time with the children.
  • The children were older.
  • The father remarried, and the children had a good relationship with their stepmother.
    • Note: Remarriage is not always a material change of circumstance by itself, but a possible change in the 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. For example, in Ambrister, the Court found that the circumstances of father’s remarriage allowed him to spend more time with the children.