Modification of Permanent Parenting Plans in Tennessee
Under Tennessee Code Annotated, any suit requiring the Court to make a custody determination regarding a minor child, the determination shall be made on the basis of a two prong test: (1) whether there has been a material change in the circumstances since the order was entered, and (2) if so, whether a modification to the Permanent Parenting Plan (“PPP”) would be in the child’s best interest. T.C.A §36-6-106. West, Westlaw current through 2017.
A parent or guardian attempting to modify an ordered PPP would need to establish a material change in the circumstances. In Hicks v. Hicks, the father attempted to establish material change since the first order entered by the Court in order to gain custody of his child. Hicks v. Hicks, 176 S.W.2d 371, 375 (Tenn. Ct. App. 1943). After noting that child custody determinations are final and conclusive upon the existing facts, the Court held that the material change may only be established by “new facts and changed conditions which were not determined and could not be anticipated by the decree.” Id. However, the ambiguity in the statutory language left the Court confused as to what “new facts” and “changed conditions” were needed to prove material change in circumstances. Id.
In 2002 and 2003, the Supreme Court of Tennessee provided a more concrete framework to clarify the concept of material change in circumstances. In Cranston v. Combs, a father requested a modification in custody, because the mother violated the visitation order, continued to deny visitation by the father, and presented a substantial risk of harm to the children. Cranston v. Combs, 106 S.W.3d 641, 642 (Tenn. 2003). The Court confirmed the two step process in making a custody determination. First, the Court needed to determine whether a material change in circumstances has occurred after the initial custody determination. This required several considerations: whether a change has occurred after the entry of the order sought to be modified; whether a change was not known or reasonably anticipated when the order was entered; and whether a change is one that affects the child’s well-being in a meaningful way. Second, after establishing a material change in circumstances, the Court needed to determine whether modification of custody was in the child’s best interests using additional factors from T.C.A. §36-6-106(a):
- The strength, nature, and stability of the child’s relationship with each parent;
- Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child;
- Refusal to attend a Court ordered parent education seminar may be considered by the Court as lack of good faith;
- The disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care;
- The degree to which a parent has been the primary caregiver, defined as the parent, who has taken the greater responsibility for performing parental responsibilities;
- The love, affection, and emotional, ties existing between each parent and the child;
- The emotional needs and development level of the child;
- The moral, physical, mental, and emotional fitness of each parent as it relates to their ability to parent the child;
- The child’s interaction and interrelationships with siblings, other relatives and step relatives and mentors, as well as the child’s involvement with physical surroundings, school, and other significant activities;
- The importance of continuity in the child’s life and length of time the child has lived in a stable, satisfactory environment;
- Evidence of physical or emotional abuse to the child, to the other parent or any other person;
- The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
- The reasonable preference of the child if 12 years of age or older. The Court may hear the preference of a younger child upon request;
- Each parent’s employment schedule;
- Any other factors deemed relevant by the Court
The Court held that while the father and mother were both fit parents, the mother created material change in circumstance when she denied the father visitation with the children. Cranston, 106 S.W.3d 641, 646. Also, the Court evaluated not only the parent, but all those who frequently visited or resided in that residence, such as a spouse or significant other, when deciding if the modification was in the best interest of the child. The Court found that father and his wife were collectively “more fit” to parent the growing children than the mother. Id.
By contrast, in Blair v. Badenhope, a biological father filed a petition to modify a consent order, which granted custody of his child to the child’s maternal grandmother. 77 S.W.3d 137 (Tenn. 2002). The father asserted that material changes were present because his relationship with his daughter was changing as his daughter grew older, and because he purchased a new home since the first Court order. Id. at 150. After deciding that a growing relationship was usually hoped for in regular visitation and a new home of a non-custodial parent does not constitute as a material change, the Court held that the father failed to establish material changes in the circumstances. The grandmother retained custody, because she provided a “loving, stable home, and caring environment in a suitable neighborhood” for the last seven years. Id.
In Kendrick v. Shoemake, a father petitioned for modification of the PPP because of the mother’s alleged material change in circumstances. 90 S.W.3d 566 (Tenn. 2002). The father alleged that “much upheaval and discontent” existed in the mother’s home. Id. at 568. However, the Court considered several factors to determine if the material change in circumstances existed, including: the mother’s work schedule, attention to educational needs, stability within marriage to new husband, medical care of the child, and ability to meet the needs of her child before her own. Id. at 571. The Court considered the environmental surroundings, such as neighbors and community members, when making a decision on the relationship between the mother and child. Neighbors testified that the child was quite dependent upon her mother for emotional support and security. Id. at 573. After discovering that the mother did not in fact place her needs above her child’s needs, the Court held that there was no material change in circumstances. Id. at 573. Since there was no finding of material change, the Court did not need to consider whether it was in the child’s best interest to modify custody.
Although the Tennessee Supreme Court continues to use Cranston, Blair, and Kendrick as guiding posts when determining to modify a residential schedule in a PPP, a few additions have been added when making this determination. These additions appear nearly ten years later in Armbrister v. Armbrister. In Armbrister v. Armbrister, a father motioned to modify the Permanent Parenting Plan due to material changes in circumstance. 414 S.W.3d 685, 688 (Tenn. 2013). The father alleged that he had remarried, changed his work schedule, and that the mother had been unwilling to allow any modification to the visitation schedule. Id. Furthermore, the father explained that he moved his office about thirty minutes away from the mother’s home, and that his recent wife had developed a great relationship with the children. Id. at 689. However, the father acknowledged in Court that the mother provided a stable environment for the children, that she and his recent wife had an amiable relationship, and that they were well-adjusted to the PPP at that point. Furthermore, the mother allotted the father extra time whenever he requested it. Id. at 690.
The Tennessee Supreme Court held that the father established a material change in circumstance, because significant changes in the needs – relating to the age – of the children over time were present, and significant changes in the parent’s living or working condition that affected parenting existed. Id. at 704. A material change in circumstance as of this case now included: significant changes in the needs of the child over time, including changes related to age; significant changes in the parent’s living or working condition that affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child. T.C.A. 36-6-101(a)(2)(C). Moving to a new residence closer to the children, adjusting in his work schedule to create more time with the children, and the fact that his children were getting older created significant changes that positively affected the father’s parenting. For example, rather than using his spare time for personal luxuries, such as travelling and playing golf, as he did in the past, the father changed his course and began to participate in his children’s extracurricular activities, even taking additional time off to be with his children. Armbrister, 414 S.W.3d 685, 705.
With a material change present, the Court now needed to determine if modification was in the best interest of the children. Utilizing the factors from section 36-6-106(a) (listed above), the Court held that the modification to increase the father’s residential parenting days from 85 to 143 was in the best interest of the children, because it allotted more time with the father without deeply disrupting the consistency and stability afforded by the PPP already in place. Id. at 706.
In summation, when determining whether to grant a modification in an existing PPP, the Court will first decide whether there was a material change in the circumstances since the order was entered. If a material change is established, the Court will then decide whether it is in the child’s best interest to modify current custody, according to the factors given under Tennessee Code Annotated 36-6-106(a) or within scope of those factors. The mission of the two prong test is to ensure that the residential parent is the best possible role model so that the child can become his or her personal best and able to live a successful and happy life as an adult. The parent petitioning must show good faith effort in not only providing for the needs of his or her child, but also providing for those needs so long as the child remains a minor and under the protection of a parent or legal guardian, so that the mission of the two prong test is more likely to succeed.