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Tennessee Appeals Court Reverses Change in Designation of Primary Residential Parent
After a divorce has been settled, changes to child custody arrangements may only be granted by the courts in certain circumstances. The Court of Appeals of Tennessee recently reviewed a case involving the modification of a permanent parenting plan in Williamson v. Lamm (Tenn. Ct. App. Sept. 30, 2016). In Williamson, the parties originally shared equal parenting time, with the mother designated as the primary residential parent. The mother filed a petition to modify the parenting schedule, arguing that since the child had reached school age, the distance between the parents made the current schedule unworkable. The father objected to the petition and requested that he be named the primary residential parent. After a hearing, the trial court established a new parenting schedule and changed the primary residential parent to the father. The mother appealed the order.
In Tennessee, all final divorce decrees involving a minor child must include a permanent parenting plan. Absent an agreement, the parties must comply with the parenting plan unless it is modified by the court. The court must follow a two-step process in determining whether a modification is appropriate. First, the court considers whether a material change in circumstances has occurred since the adoption of the current parenting plan. If so, the count will then examine statutorily enumerated factors in deciding whether a modification is in the child’s best interest.
The burden of proving that a material change has occurred is on the parent seeking a modification of the parenting plan. To modify a residential parenting schedule, merely showing that the existing arrangement is unworkable is sufficient to satisfy the material change of circumstances test. However, changing the primary residential parent requires a higher standard, in that the material change must have occurred after the entry of the parenting plan.
In Williamson, the appeals court concluded that the distance between the parents’ homes, the need to enroll the child in school, and the failure of the parents to reach an agreement was sufficient proof that the alternating weekly residential schedule in the current plan was unworkable. The court remanded the matter back to the lower court for a hearing on whether it is in the child’s best interest to modify the residential parenting schedule, and if so, which schedule would serve his best interest according to the statutory guidelines.
The appeals court did not find, however, that the evidence was sufficient to switch the primary residential parent from the mother to the father. The court expressly stated that a mere change in the child’s age does not constitute a material change sufficient to modify the primary residential parent. In addition, while recognizing that interference with the parent-child relationship can be a material change, the court held that the mother’s actions in allowing the child to call his step-father “daddy” and skip some telephone calls were insufficient to rise to the level of a material change. Accordingly, the decision was reversed and remanded for a determination on the parenting schedule.
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