Posted by: koherston | March 22, 2012

Considering “Maximum Amount of Time Possible With the Child” in Tennessee Child Custody Decisions: Rountree v. Rountree

Facts: Mother and Father are the parents of a two-year-old Child. They divorced after approximately nine years of marriage. Prior to the marriage, Father was injured in an accident that left him “confined to a wheelchair” and “unable to obtain substantial employment.” Before the divorce, Father was the primary caregiver for Child while Mother worked. This arrangement continued while the divorce was pending, with Mother caring for Child at night and on weekends. Mother thought it best for Child to start preschool at age three. Father preferred that Child not start school until kindergarten, thereby allowing him to care for Child during the day, opining that “preschool was really nothing more than a daycare.” After faulting Father’s for being overprotective and wanting to keep Child to the exclusion of “everybody else in the world,” the trial court designated Mother as the primary residential parent and awarded Father co-parenting time during the day while Mother worked until Child started preschool at age three. Thereafter, Father was awarded alternating weekends plus a weekday overnight each week. Father appealed.

On Appeal: The Court of Appeals vacated and remanded the trial court’s judgment.

Father argued that the evidence did not support the trial court’s finding that he “has a great need for the company of his child through the day due to his inability to be gainfully employed and that Father dreads separation from [Child].”

In fashioning parenting plans, Tennessee Code Annotated § 36-6-401 has long instructed courts that:

The general assembly recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. . . .

Most children do best when they receive the emotional and financial support of both parents. . . .

Last year, the Tennessee Legislature amended the child custody statute, according to the Court, “to include a statement emphasizing this policy.” Tennessee Code Annotated § 36-6-101(a) now provides, in pertinent part:

In taking into account the child’s best interest, the court shall 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 out in subdivisions (a)(1)-(10), the location of the residences of the parents, the child’s need for stability and all other relevant factors.

Commenting on this amendment, the Court states:

Accordingly, Tennessee courts must now fashion custody arrangements so as to give each parent the maximum amount of time possible with the child, in accordance with the child’s best interests.

In a footnote, the Court adds that “the amendment reflects a public policy in favor of allowing the child ample time with both parents, which is a paramount consideration in all Tennessee parenting plan decisions.

After reviewing the record, the Court concluded:

From our review of the record, there is no evidence to support the trial court’s finding that [Father's] motive in keeping the child from preschool is due to his need for the companionship of the child . . . [or that he] dreads separation from the child. . . .

[T]here was no basis for the trial court to restrict [Father's] parenting time so as to accommodate preschool, especially given the express legislative preference that parents receive the maximum time possible with their children.

From our review of the trial court’s order, the decision to adopt [Mother's] proposed permanent parenting plan was based almost exclusively on the trial court’s unsupported conclusion that [Father] has a self-serving motive for his desire to keep the child out of preschool. . . .

Therefore, we conclude that the trial court erred in adopting [Mother's] proposed permanent parenting plan.

The Court vacated the trial court’s decision and remanded it back to the trial court “to determine a new parenting plan is in the best interests of the child.”

K.O.’s Comment: This is the first opinion I’ve seen that expressly relies upon the recent amendment to Tennessee Code Annotated § 36-6-101(a) as part of the legal rationale for its decision. I am critical of the Court’s citation to and contradictory interpretation of the recent amendment.

The Court correctly notes the amendment merely emphasizes the longstanding public policy set forth in Tennessee Code Annotated § 36-6-401. In other words, it did not alter the existing substantive law regarding the comparative fitness analysis required in an initial custody determination. After saying this, however, the Court acts as if the amendment was, in fact, a sweeping change in the substantive law requiring that “Tennessee courts must now fashion custody arrangements so as to give each parent the maximum amount of time possible with the child, in accordance with the child’s best interests.” As if that weren’t what Tennessee courts have been required to do all along! As a substantive matter, the amendment changed nothing.

The Court’s dicta was unnecessary and will lead to confusion as litigants interpret it to require some new approach for trial courts in initial custody decisions. It doesn’t. And while the Court admittedly makes that point, it then proceeds to imply (if not directly state) the exact opposite point.

Rather than crafting an opinion of limited scope that turns on the unique facts of the case presented, the Court can’t resist commenting on the recent amendment in a way that, in the opinion of this author, is both clumsy and likely to sow confusion in the trial courts.

Rountree v. Rountree (Tennessee Court of Appeals, Western Section, February 1, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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