8th Jan 2014

As of October 21, 2013, the Tennessee Supreme Court has held that the burden of modifying a residential parenting schedule should not be as burdensome as it had been in the past. Specifically, the parent attempting to change the residential schedule no longer has to prove that the change of circumstance which the modification is premised on was unanticipated at the time of the initial parenting agreement.

This change in policy goes hand-in-hand with the change in position of the Tennessee Supreme Court to allow both parents equally substantial parenting time with the minor children. In 2011, the Tennessee Legislature enacted T.C.A. 36-6-106(a), which provides:

“In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out below, the location of the residences of the parents, the child’s need for stability and all other relevant factors.”

This is a direct change of direction from the former “standard parenting schedule” where one party, usually the Father, was given every other weekend from Friday at 6:00pm until 6:00pm, alternating holidays and school-free days, as well a week of summer parenting time.

However, in ruling on residential parenting schedules, courts are still required to consider numerous factors, including:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7) The reasonable preference of the child, if twelve (12) years of age or older;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; an

(10) 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.”

However, the opinion in Armbrister v. Armbrister, No. E2012-00018-SC-R11-CV, now makes it easier for the trial court to reach a determination as to these factors when considering a petition to modify residential parenting schedule because events such as the remarriage or relocation of a party; a change in work schedule; the maturing age of the child; and, any other change in circumstances that could have been foreseen or anticipated at the time of entry of the original parenting plan can now be considered by the Court in a petition for modification of parenting schedule and can actually be the basis for such a petition.

It must be noted, as well, that this change in intent of the General Assembly in setting a low threshold for establishing a material change of circumstance to modify an existing parenting schedule does not apply in petitions to modify primary residential custody of a child.