Family Law

For most people, once their divorce is final they are done with the divorce process and the legal aspects of their case. But this may not be true for everyone, writes U.S.-based family lawyer Stuart Scott, of Dickinson Wright.

When there are minor children involved, there might be unanticipated behaviors or unforeseen circumstances that warrant a change in custody. This may include changing who is the primary residential parent.

In Tennessee, deciding whether to change the primary residential parent post-divorce requires a two-step analysis. The first step is to determine whether a material change of circumstances occurred since the original Custody Order was entered. If the court finds there has been a material change of circumstances, the court must then determine whether it is in the child’s best interest to modify the parenting plan.

Different standards apply depending on the type of modification involved. If a parent requests only a modification to the parenting schedule, the threshold is much lower to make the change than it is when a parent wants to change who is the primary residential parent for the child. It is much easier to simply make modifications to the schedule the parties previously agreed to than it is to make a complete change in which party is the primary residential parent.

To change the parenting schedule, a parent need only show that there has been an unanticipated material change in circumstances that warrants the change. Simple things such as minor changes to the school schedule or a parent’s work hours may suffice to meet this threshold level.

The standard is very different and much more difficult to change which parent is the primary residential parent for the child. The unanticipated and material change must be one that affects the child’s well-being in a substantial way.

In Tennessee, a material change of circumstances necessary to change the primary residential parent 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.” This may include circumstances where one parent makes it difficult to implement the parenting plan to the detriment of the child. If this happens, a parent runs the risk of losing primary residential parent status altogether.

If the trial court determines there has been a material change in circumstances, it must then determine whether it is in the child’s best interest to modify the parenting plan. The law provides 15 different factors for courts to consider, the last of which is “any other factors deemed relevant by the court.” The best interest factors allow a court to consider all facts relevant to the child’s relationship with both parents and their relationship with one another as well as any issues particular to that child.

Many parents do not realize that denying parenting time in violation of a court order may be sufficient grounds to cause the parent who engages in this conduct to lose primary residential parent status. Generally, however, the court will look to both the nature and duration of the inappropriate behavior by a parent as well as the love, affection and emotional ties existing between each parent and the child in determining what is in the child’s best interest. The court will also consider the importance of continuity and stability in the child’s life and the child’s interaction with other siblings and relatives, among other factors.

If the child is 12 years of age or older, the child may also state his or her preference. This opinion is not binding on the court, however. And many judges and lawyers are very reluctant to allow a child to become involved in any way with the dispute between the parents as to which parent is going to have primary residential parent status. The involvement of the child in that process can be emotionally damaging.

It is possible to change which parent is the primary residential parent for a child post-divorce. Usually, the courts require a solid, material change in circumstances which means it is not in the best interest of the child to stay with the primary residential parent in order to change this. Meanwhile, more modest changes to the parenting plan in Tennessee are less difficult to obtain. In fact, both parents will sometimes agree that they each want to modify a pre-existing parenting plan arrangement due to an unanticipated change in circumstances. If they both agree, they can petition the court together without any fighting whatsoever. Many counties in Tennessee have different ways of reviving a pre-existing divorce order and different costs associated with it. It is wise, therefore, to obtain counsel from an attorney knowledgeable in the area before trying to change a parenting plan.