The Standard for Changing Custody Gets More Subjective
Tennessee Court of Appeals
A recent Tennessee Court of Appeals case has opened the door to what it means to have a material change of circumstances in a Modification of a Parenting Plan Petition. The initial threshold question is whether or not there has been a “material change of circumstances” warranting a change in “custody.” For many Judges, this is a substantial barrier. A recent Court of Appeals case seems to suggest the barrier isn’t so high anymore.
If the parent requests a modification of the primary residential parent, which was formerly described as custody, then the parent must “prove by a preponderance of the evidence a material change in circumstance.” Massey-Holt, 255 S.W.3d at 607. A material change in circumstance in this context may “include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstance[ ] that make the parenting plan no longer in the best interest of the child.” Tenn. Code Ann. § 36-6-101(a)(2)(B). The change must have occurred after entry of the order sought to be modified, and the change must not have been reasonably foreseeable when the prior order was entered. See, e.g., Caldwell v. Hill, 250 S.W.3d 865, 870 (Tenn. Ct. App. 2007)