Facts: The parties have three children. At mediation, the parties apparently reached an agreement on co-parenting such that Mother would have 200 days and Father would have 165 days. According to the opinion, the parties reached this unusual agreement without actually agreeing on the co-parenting schedule itself. Father wanted more of an alternating weeks approach while Mother preferred more of an extended weekend approach. Thus, the issue came before the trial court in a hearing where Mother was represented by a lawyer and Father was not, instead choosing to represent himself. The trial court adopted Mother’s proposed schedule and entered a Parenting Plan awarding Father 165 days. Father filed a Motion to Alter or Amend, noting the schedule proposed by Mother and adopted by the trial court actually awarded Father 148 days. The trial court acknowledged its mathematical error as follows:

Now, when counsel submitted to the Court the proposed parenting plan at the trial, the mother’s plan and the father’s plan, they both had 200 and 165 on them, so I assumed that y’all had counted the days, a bad assumption on my part, so I didn’t count them. Now — and I used those figures in the plan. When I look at the mother’s plan that I adopted, I only count 148 days. . . .  I did not count the days, so if you all want to count the days yourself and see if that will make any difference, but I get 148 days, and I’m not inclined to change that because I think that’s more than adequate.

Father appealed and, again, chose to represent himself.

The Court of Appeals affirmed the trial court.

The trial court should, of course, consider any agreement by the parties as to parenting issues, including the residential parenting schedule. The trial court is not, however, bound by such an agreement, but instead must evaluate whether the agreed arrangement is in the best interest of the children. While an agreement on parenting issues would ideally reflect the parties’ considered judgment on the arrangement that would best fit the needs of their children, it is also recognized that other factors can come into play in such an agreement, such as the original dysfunction in the parties’ relationship, inequality of resources, reluctance to involve the children in the litigation, or even the parties’ desire to get the divorce “over with.” For that reason, the trial court has broad discretion to determine an appropriate parenting plan in light of the evidence adduced at a hearing and the best interest of the children, even where the parties have reached an agreement on such issues.

In the case at bar, Father can hardly claim surprise that the trial court considered an allocation of residential parenting days different from that reflected in the parties’ mediated agreement. Early in the trial, the trial judge stated explicitly that he wanted to hear both parties’ testimony on what they felt was in the children’s best interest, and would then make an independent decision on the parenting arrangement. In fact, both parties testified at some length about why they felt their proposals were best for the children, pointing out the relative strengths and weaknesses of the other parent’s proposal.  Thus, under the circumstances of this case, the trial judge was not bound by the mediated agreement of the parties on the allocation of residential parenting days.

Regardless of the parties’ mediated agreement, Father argues that the trial court erred in awarding him only 148 residential parenting days. Here, the trial court explained its decision in part by a desire to fashion a schedule that would permit the children to feel that they have a “home.” This consideration was clearly appropriate and, from our review of the record, supported by the evidence at trial.

When I first read a summary of this opinion, I was surprised that a court would overrule the mediated agreement of both parents. When I read the full opinion, however, I understood that the so-called agreement was not really an agreement at all.  The parties never agreed on a co-parenting schedule. The schedule is the most important part. Without that, there is nothing, as these parties discovered.

I also find it curious that Father opted to represent himself instead of hiring a lawyer, even on appeal. While I don’t think it is necessary to hire a lawyer in every case, I think it would have been wise to do so in this case given the issues. For most people, a contested custody trial is the most important and life-changing interaction they are ever going to have with the judicial system. Representing oneself in such a situation is synonymous with performing major surgery on oneself. I wouldn’t recommend either.

Greer v. Greer (Tennessee Court of Appeals, Sept. 30, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.