It is common after a court order setting out a visitation schedule for one or both parents to want a change in the visitation schedule, and when they can't come to agreement on it with the other parent they frequently want to return to court.  Often this happens when the non-custodial parent wanted custody and later files a Petition to Modify visitation, not really to get the visitation schedule changed but instead simply to ask for more time with the child.

        Judges tend to hate hearing these cases, thinking they have more important matters to hear, feeling that the parents really should be able to work out changes between themselves, and in cases where the non-custodial parent is simply seeking more time being irritated that someone who lost once essentially wants to re-argue the same matter again.
 
        This may be one reason judges seem so fond of the Parenting Planning pilot program -- it applies the same in efforts to modify visitation schedules as it does in original custody issues in divorce (at least in the six counties in the pilot program), meaning mediation is mandatory if the parents can not work out their differences.  While cases that are not resolved by mediation will end up back in front of a judge, many are likely to be resolved in mediation and judges are able to avoid hearing them.  (This is not to say mediation is a mistake -- it is a great way to reduce the conflict between parents over the children, and that is generally best for the children.)

        Don't get me wrong, you can persuade judges to change visitation orders, but not just because you want a change.  That alone simply is not enough of a reason, not even if originally you agreed to no visitation and then later realized this was a terrible mistake.

        This is because of a judicial doctrine called "res judicata", which means issues which have been decided before, or which should have been decided at the time of a prior decision or prior Agreed Order, will not be changed later in a new trial (they might me changed on appeal or if a court of appeal orders a new trial, but not otherwise).  In other words, you get one bite at the apple, unless there has been a substantial and material change of circumstances.

        Visitation schedules that have become final are res judicata on the facts existing at the time of the decree.  Nichols v. Nichols, 792 S.W.2d 713, 715 (1990).  Therefore, to get the court to order a change in a visitation schedule a petitioner must allege and prove that circumstances have changed since the prior order.  Dodd v. Dodd, 737 S.W.2d 286, 290 (Tenn. App. 1987).  Facts that could have been anticipated at the time of the former order may not be used to establish a change of circumstances.  Hicks v. Hicks, 176 S.W.2d 371, 375 (1943).

        In a proceeding to modify a prior visitation order, the party seeking the change has the burden of proving a material change in circumstances compelling enough to warrant such a change.  See Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991).  A change of circumstances warranting a change in a visitation schedule includes "any material change of circumstances affecting the welfare of the child or children" and requires a showing of "new facts or changed conditions which could not be anticipated by the former decree."  Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App. 1993).  The trial court's finding of a change of circumstances does not end the inquiry, however, because the trial court's decision on visitation still must be guided by its consideration of the best interest of the child.  Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. App. 1983).

        In other words, if you could have brought it out when the case was in court before and didn't, you can't use that evidence to justify a change in visitation.

        What changes are enough to justify a change in the visitation schedule?

        While judges do not always agree as to exactly what is needed, it is generally enough to show that parents have new work schedules, or have moved, perhaps that the  child has now started school, or sometimes simply that the child wants to spend more time with that parent.  It is never enough for the principal change to be in the parent wanting to modify the visitation schedule -- before they didn't it but now they do.

        Most changes now argued in court are the result of one or both parents moving, often a considerable distance, making the normal visitation schedule of every other weekend entirely impractical.  Frequently the court will then order major changes in the schedule, entirely eliminating the every other weekend visitation, but giving the non-custodial parent much, or even nearly all, of the summer with the child.

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