“However, “a “change in circumstance” with regard to the parenting schedule is a distinct concept from a “change in circumstance” with regard to the identity of the primary residential parent.” Massey-Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007); see also Tenn. Code Ann. §§ 36-6-101(a)(2)(B), -101(a)(2)(C) (Supp. 2015).” – Wilkerson v. Wilkerson
This statement is important but goes overlooked frequently. I can’t tell you how many times I have a parent come into my office who didn’t fight for primary during the divorce because they wanted to just be divorced and figured they could just change everything later. In the majority of cases, your divorce will be your best chance to gain primary care and control of your child. Now, I say majority because there is also an exception and I have had several cases where there was a specific reason we planned to go back – think of a parent with stability issues or who is recovering from a substance abuse problem – but most of the time your divorce is when you need to go for it all, and too many times people don’t do it.
Your attorney is going to understand better than anyone just how hard it is for you to keep fighting. Going through a divorce is terrible. It is stressful, it is expensive, your life goes on hold, your kids are agitated and anxious, you can’t plan for everything, and worse sometimes you are stuck in a home with an angry spouse who is going through the same stress and is equally short tempered and worn out. The easy way to do it is to not worry about a primary determination and take your every other weekend and plan to deal with it later. Where people mess up is thinking there will be a “later” in the legal sense.
Changing a parenting SCHEDULE is relatively easy. The standard is much lower. Things like new extracurricular activities or new jobs for parents can be grounds to modify a schedule if its in the best interests of the minor children. Once an initial determination has occurred however (ie your parenting plan in your divorce) you have to have a really really really good reason to change who is primary, and it can’t be something that already existed prior to the divorce order. If you knew your spouse was smoking weed with the kids and you signed the divorce papers anyways, you can’t use that as grounds to change the primary determination later. “I’m a better parent” won’t work either, nor will things like the parent moving a new romantic partner in the home (exception – felons or sex offenders, obviously), the parent moving to a new school zone, corporal punishment, or – and this one shocks people the most – your kids wanting to come live with you instead.
It is so important that your parenting plan is done well and properly, and that the appropriate parent is name the primary, during the actual divorce because you may not get a do-over. Make sure you have an attorney who understands that and advises you properly, and will help you be strong through the process so that the process doesn’t break you and you cave in to the pressure to just get the divorce done. There may be no going back.
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