TN Dad’s Change of Work Schedule Warranted Second Look at Parenting Plan

Tennessee child custody case summary on custody modification and maximum participation possible.

Wendi Natasha Cook v. Bryan David Cook

The mother and father in this Tennessee custody modification case were divorced in 2010 and had one son.  The original parenting plan named the mother the primary residential parent, with the father receiving about 96 days per year of parenting time.  The father’s parenting time was every other weekend, with an additional one night per week.

In 2014, the father went back to court requesting a change in the parenting plan.  He argued that there had been a material change in circumstances, based upon both parties remarrying, as well as a significant change in his work schedule.  He had previously worked a sheriff’s deputy on twelve-hour shifts, but he had recently changed to a schedule of eight hour shifts Monday through Friday.

After hearing the evidence, the trial court concluded that there had not been a material change of circumstances, and refused to modify the parenting plan.  The father then appealed to the Tennessee Court of Appeals.

The appeals court started by pointing out that trial courts have broad discretion when it comes to parenting plans, and there is a presumption of correctness unless the evidence preponderates otherwise.

But the appeals court also pointed out that a material change of circumstances does not require a finding of substantial harm to the child.  It quoted a Tennessee Supreme Court decision pointing out that the threshold is quite low.

The trial court had believed that it was bound by an earlier case, but the appeals court pointed out that the facts of that case were quite different.

The appeals court concluded that the father had met the low threshold of showing that there had been a material change of circumstances.  It pointed out that the change in work schedule had been significant, and also that the father’s remarriage had been a major factor in the father’s parenting.

Quote from the opinion discussing maximum participation possible:

We find McFarland distinguishable in several respects. First, the mother in McFarland, who was the non-primary residential parent, was granted approximately fifty more days of parenting time at the time of the parties’ divorce than the Father in this case. Trial courts must “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 forth in Tenn.Code Ann. § 36–6–106(a)(1)–(10). The parties in McFarland were far closer to enjoying maximum participation in the child’s life than are the parties in this case.  Second, the trial court in McFarland determined that the evidence showed that the mother’s work schedule had not truly changed. Here, Father’s work schedule changed from an overnight shift to a more traditional work schedule (from 8:00 a.m. until 4:00 p.m.). At the time of divorce, Father’s week night parenting time was tailored specifically to his work schedule, as it required the child to be returned to Mother by 6:00 a.m. on weekdays, the exact time his shift would begin. The parties have persisted in this arrangement, and Mother has continued to retrieve the child from Father’s home at 6:00 a.m. even though Father’s work schedule no longer requires the child to be picked up prior to the school day. For these reasons, the McFarland case is distinguishable from the present case. (Emphasis added.)

Since there had been a material change of circumstances, the Court of Appeals sent the case back to the trial court to make a determination of the other factors that would be necessary to warrant a change in the parenting plan.  It reversed the judgment, and assessed the costs of the appeal against the mother.

No. M2015-00253-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2015).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.