Change of Circumstances Agreed But Not Stipulated by Parents

Tennessee child custody modification case summary.

Tutor v. Tutor

The mother and father in this case were divorced in 2014.  They were the parents of one child, who was born in 2007.  At the time of their divorce, the trial court of Shelby County, Tennessee, entered a permanent parenting plan naming the mother as the primary residential parent.  The mother received 205 days of parenting time, and the father, 160 days.  Both parents had joint decision-making responsibilities.

In 2018, first the father, and then the mother, made petitions to modify the parenting plan.  The father asked to be named the primary residential parent.  He alleged that the mother failed to make joint decisions, didn’t allow the child to participate in school sports, and other allegations.  The mother asked for a modification of the parenting schedule, alleging the father’s failure to adhere to the parenting plan.

A trial was held before Judge Robert Samual Weiss, who granted the father’s petition and named him the primary residential parent.  The trial court’s order stated that both parents agreed that there had been a material change of circumstances.  The court found the material change for that reason.  After post-trial motions, the mother appealed to the Tennessee Court of Appeals.

On appeal, the mother argued that the trial court had erred in finding a material change of circumstances for this reason.  After discussing the standard of review, the appeals court tackled this issue.

The appeals court noted that in any custody modification case, the trial court must find a material change of circumstances by a preponderance of the evidence.  It noted that a change of custody, as happened in this case, requires a higher showing than a mere modification of the visitation schedule.  And in this case, the father had the burden of proof.

The mother’s proposed change was a mere change in the visitation schedule, which has a lower burden of proof.  Even though both parties asserted a material change, the appeals court concluded that the trial court erred in holding that this amounted to a stipulation.  It held that they did not stipulate to anything.  They merely made similar allegations.

For these reasons, the appeals court held that the lower court’s order needed to be vacated.  The first step in any custody modification case is a finding of material change of circumstances, and this had not been properly done in the case.

The appeals court also held that neither party was entitled to attorney’s fees, either for trial or the appeal.

For these reasons, the Court of Appeals vacated the lower court’s ruling and remanded the case.

No. W2019-00544-COA-R3-CV (Tenn. Ct. App. Mar. 10,  2020).

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 examples of parenting plans and child support worksheets from real cases available on Amazon.com.