Parenting Plan Modification: Changing Custody Versus Changing the Parenting Schedule

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Williamson v. Lamm is an instructive example of how the standard applicable to determining whether a material change in circumstances has occurred with regard to a residential parenting schedule is different from that for determining whether such a change has occurred with regard to child custody.

Williamson involved an equal time permanent parenting plan with the mother designated as the primary residential parent (PRP). After the divorce, the mother petitioned to modify, claiming a material change in circumstances based on the child having reached school age and the distance between the parents having made the parenting schedule impractical. The father sought to be made the PRP.


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The trial court changed the PRP for the upcoming school year to the father, established a new parenting schedule, and invited the mother to file a new modification petition the following school year. Under the new plan, the child would live with the father during the week, and the mother would have visitation every weekend. During summer vacation, the child would live with the mother during the week, and the father would have visitation every other weekend, plus two full weeks.

When the mother appealed, the Tennessee Court of Appeals held that there had not been a material change in circumstances warranting a change of the PRP designation to the father, but that there had been a material change sufficient to meet the lower standard for modification of the parenting schedule. Accordingly, the case was remanded to the trial court for a determination of a parenting schedule that would serve the best interest of the child.

A change in circumstance with regard to a residential parenting schedule is a distinct concept from a change in circumstance with regard to custody.… In the context of a modification of custody, also known as a change in the [PRP], a material change in circumstance may include … failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child…. Although there are no hard and fast rules for determining when a material change in circumstance has occurred, factors for our consideration include: (1) whether the change occurred after entry of the order sought to be modified; (2) whether the change was known or reasonably anticipated when the order was entered; and (3) whether the change affects the child’s well-being in a meaningful way…. Not every change in circumstance is a material change; [t]he change must be significant before it will be considered material…. The threshold for establishing a material change in circumstance where the issue before the court is a modification of the residential parenting schedule is much lower. … The petitioner still must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest, and like a material change for modification of the primary residential parent, the change must have occurred after entry of the order sought to be modified…. However, unlike the standard for a change of primary residential parent, whether the change was reasonably anticipated when the prior plan was entered is irrelevant…. To modify a residential parenting schedule, ‘merely showing that the existing arrangement [is] unworkable for the parties is sufficient to satisfy the material change of circumstance test.’ Williamson v. Lamm, 2016 WL 5723953 (Tenn. Ct. App. 2016) Emphasis added. Citations and quotations omitted.


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The court also stated:

While normally we would review the trial court’s finding of a material change de novo with a presumption of correctness…. The trial court did not make a finding of a material change in circumstance. The court announced … that such a finding was unnecessary…. We disagree. This threshold finding is statutorily required…. In the absence of a finding of a material change by the trial court, we review the record de novo…. We conclude the … evidence in this case does not establish that a material change has occurred sufficient to modify the [PRP]. We recognize that [the child] has reached school age…. [The child’s] changing age, however, does not constitute a material change in circumstance sufficient to change the [PRP]…. We find the proof in this record, however, does establish a material change that meets the lower standard required for modification of the residential parenting schedule…. Given the distance between the parents’ homes, the need to enroll [the child] in school, and the obvious failure of the parents to reach an agreement, there is sufficient proof that … the current plan is unworkable. Id. Citations and quotations omitted

The Bottom Line

If you are seeking to change the PRP, you must prove that the change in circumstances was not one that could have reasonably been anticipated when the original parenting plan order was entered. But, if you are seeking to only change the parenting schedule, you need only prove that the existing schedule is unworkable. Francis King 


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Francis King

Francis King has handled a diverse range of civil litigation matters since 1981, and is admitted to practice in Tennessee, New York, Massachusetts and several federal courts. For the past nine years, he has concentrated primarily on family law matters, including divorce and child custody cases. He graduated cum laude from Clark University, in 1978, with a Bachelor of Arts in government, and magna cum laude from New England School of Law, in 1981, where he was an editor of the New England Law Review. He has offices in Nashville and Franklin, and practices throughout Middle Tennessee.

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