Posted by: koherston | January 10, 2011

O’Rourke v. O’Rourke

Facts: Mother and Father had nine children in their 28-year marriage. In their divorce, they agreed a Parenting Plan but returned to court with frequent post-divorce disputes.  Father filed a petition to modify the parenting plan to change custody and name him the primary residential parent of the children.  After a trial, the trial court granted Father’s petition.

The court discussed a number of the statutory factors which indicated that it would be in the best interest of the children for Father to be named as their primary residential parent, but the one it found most significant was “each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. . . .”

The court declared that it found that Mother was determined to prevent the children from enjoying a positive relationship with Father. . . .  In light of Mother’s “relentless attempts to convey her bad opinion of their father to these children,” the court concluded that the only possible way for the children to have a relationship with both parents would be for them to be with Father.

Mother appealed, arguing the trial court erred in naming Father primary residential parent because such an award is barred by Tenn. Code Ann. § 36-6-406, which reads in relevant part,

(a) . . . a parent’s residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the following conduct:

(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or of another person living with that child as defined in § 36-36-01.

The Court of Appeals affirmed.

It is important to note that Mother has made no assertion that Father has abused her since the filing of the complaint for divorce. Thus, at earlier points in the litigation, not only did Mother fail to assert that Father’s time with the children should be limited because of alleged domestic abuse during the marriage, she affirmatively agreed to him having custody and unrestricted visitation. Consequently, Mother has waived the issue of the application of Tenn. Code Ann. § 36-64-06. Even if that issue was not waived, however, there are other valid reasons to support the trial court’s decision not to limit Father’s parenting time on the basis of the statute.

Mother would like us to read Tenn. Code Ann. § 36-6-406 as absolutely barring any parent from being named as the primary residential parent of a child if that parent has any history of abuse, no matter the degree of abuse involved or its remoteness in time. Both the legislature and the courts take domestic abuse very seriously, as they should. We do not believe, however, that the legislature intended the statute to be applied so broadly as to deprive the trial court of its discretion to make custody determinations in accordance with the best interest of the children, based upon the factual situation that exists at the time of that determination.

In the case before us, the trial court found that Mother was emotionally abusing the children and that remaining in her primary custody was not in their best interests.

In this case we have yet another reminder that the failure to encourage a relationship between the children and the other parent can and often does lead to a change of custody.  How many times does this have to happen before parents realize the courts take this very seriously?

O’Rourke v. O’Rourke (Tennessee Court of Appeals Nov. 10, 2010).

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


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