Modifying Tennessee Parenting Plans | What Must Be Proven

Tennessee Parenting Plan Modification

Tennessee Parenting Plan Modification | What parents must prove to modify parenting time schedules after divorce, change of circumstances, and best interest of children.

When parents with children divorce, there must be a parenting schedule.  Tennessee calls this a Permanent Parenting Plan (PPP).  Modification of custody occurs when a parent seeks to modify the original parenting schedule.  A parent desiring to modify a parenting schedule must prove a material change in circumstance occurred after the original custody decree.  The proposed modifications must be in the best interests of the child.  Because modification of the schedule is less drastic than a change designation as residential parent, a more flexible standard is used by the courts to determine whether modification is appropriate.  How can a parent prove a material change in circumstance calls for modification?  The Tennessee legislature has recognized a number of circumstances:

• Changes in the needs of the child relating to age;
• Changes in the parent’s living or working condition which affects parenting; and
• Failure to adhere to a court-ordered parenting plan.

This list is not exhaustive.  The party requesting modification must merely show that the existing custody arrangement is no longer workable.  The following cases illustrate situations where the court found a material change in circumstance sufficient to warrant a modification of custody:

• The original custody decree awarded the father primary custody of two children and gave the mother weekends with one additional night per week.  One year later, the mother filed a petition seeking to be primary residential parent of the children and a modification of the parenting schedule, claiming one of the children desired to go to school in the mother’s district.  The Tennessee Court of Appeals modified the parenting schedule to allow the children to spend alternating weeks with each parent.  The mother was unable to prove either of the children actually desired to attend school in her district.  However, the original custody arrangement was confusing to the children, who struggled with grades and had difficulty remembering which parents’ house to go to after school.  The Court found this change in circumstance sufficient to permit a modification of the parenting schedule, but not drastic enough to justify a change of primary residential parent.
• The original custody decree awarded the mother primary residential custody of two children.  The father was granted “reasonable and liberal” visitation with the children, provided he gave the mother advance notice.  The father, a NASCAR driver, was frequently out of town and had difficulty providing the mother with the notice required in the original custody decree.  The father petitioned for modification of the parenting schedule.  The Tennessee Court of Appeals affirmed a modified schedule that granted the father set hours during the week, the entire month of December, a substantial portion of the summer, and two NASCAR race weekends per season.  Considering both the frustrated communications between the mother and father and the father’s strong desire to play an active role in child-rearing, the Court found modification to be in the best interests of the children.
• The grandparents, whose son was divorced and in jail, obtained visitation rights of one Saturday per month and an additional two hours per week during the summer recess.  The grandparents became close to the child, provided financial support for the child, and regularly babysat the child at the request of the child’s mother.  The mother re-married and her new husband adopted the child.  Relations between the mother and grandparents became hostile, and the mother refused to allow the grandparents to see the child.  The grandparents petitioned the court to modify visitation rights.  Instead of using the typical “best interest of the child” standard, the Tennessee Court of Appeals used a “danger of substantial harm” standard.  Because Tennessee courts are more protective of parental rights, the grandparents had the burden of proving the current visitation schedule presented a danger of substantial harm to the child.  The mother’s failure to adhere to the original visitation schedule and the continued and close involvement of the grandparents in the child’s life led the court to allow for a modification of the visitation schedule.

In each of these cases, the court found that a material change in circumstance occurred after the original custody decree.  These changes in circumstance justified a modification of the parenting schedule.   In the case of grandparent visitation rights, the court found that the original schedule presented a danger of substantial harm to the child.  Each of the scenarios illustrates a situation in which the court modified the parenting schedule to serve the best interests of the child.

To learn more, see Modifying Custody & Parenting Plans in TN After Divorce.