Modification of TN Parenting Plan | Practical Not Vindication

In this post-divorce dispute, the trial court granted father’s petition to modify the parenting plan and denied mother’s subsequent petition to modify the parenting plan. The Court of Appeals affirmed the trial court’s decisions.

Tennessee Code Annotated section 36-6-101(a)(2)(C) provides:

If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly 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.

(Emphasis added). This statute “sets a very low threshold for establishing a material change of circumstances. Indeed, merely showing that the existing arrangement has proven unworkable for the parties is sufficient to satisfy the material change of circumstances test.” Rose v. Lashlee, M2005-00361-COA-R3-CV, 2006 WL 2390980, at *3 n.3 (Tenn. Ct. App. Aug. 18, 2006).” . . . .

“Mother argues that ‘Father repeatedly violated the rules regarding his Wednesday visitation and the trial court in essence changed the rules so that Father could follow them, rather than simply enforcing the rules as written.’ While we can understand Mother’s frustration, we note that, based on the record before us, the trial court was clearly concerned that the solution to the Wednesday evening visitation problem be one that was in the children’s best interest, rather than one that would either reward Mother for following the rules or punish Father for breaking them. See Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991).”

CLARENCE ANDREW ELCAN v. AMANDA HART ELCAN

March 7, 2012