Posted by: koherston | September 6, 2012

Primary Residential Parent Designation at Issue in Tennessee Divorce: Henson v. Henson

Facts: The parties, parents of two minor children, divorced after a 23 year marriage. They entered into a temporary parenting plan designating Mother as the primary residential parent. At trial, the only contested issue was which parent should be named the primary residential parent. Mother testified that she lived in a motel where she worked as a maid. Because the motel room lacked a kitchen, she took the children to her boyfriends nearby home to cook meals. Both children have learning disabilities that require them to participate in special education programs at school and take various medications. Father testified he administered the children’s medication, although he was unsure of what prescriptions the children were taking for their disorders. Mother knew those details. The children testified in chambers that they prefer to live with Mother for a variety of reasons. The trial court found it was in the children’s best interest that Mother be named the primary residential parent. Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

In fashioning parenting plans, Tennessee Code Annotated § 36-6-401 advises 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 to include a statement emphasizing this policy. Tennessee Code Annotated § 36-6-106(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.

After reviewing the record and statutory factors set forth in Tennessee Code Annotated § 36-6-404(b), the Court affirmed the trial court, reasoning as follows:

[T]hese children have special needs. . . . [T]hey require special education at school, and both read at grade levels much lower than their actual age group. Consequently, it is imperative that these children have as much stability and continuity in their lives as possible. Although, as correctly noted by the trial court, neither parent’s living situation is ideal, from the record, it is clear that Mother is more actively involved in taking care of the children’s day-to-day needs. Unlike Father, when questioned, Mother knew what medications the children took, and when. She knew what school programs they were in. Moreover, Mother, not Father, is the parent who attends the children’s school meetings and doctor’s appointments. When questioned, both children indicated a desire to live with Mother; both children specifically stated that they felt “safe” with Mother.

On the other hand, both children stated that they did not feel safe at Father’s home. Each stated separately, and out of hearing of the other, that Father’s brother, who lives in Father’s house, called them “retard.” They testified that there are too many people at Father’s house. From [the testimony of various witnesses], it seems that the children are often unsupervised while at Father’s home. . . .

Although Mother lives in a motel room when she is with the children, her testimony reveals that the children have their own bed, and that she is able to prepare meals at her boyfriend’s home to reheat at the motel. The children’s testimony was that their Mother does supervise them, checking on them throughout the day while she works cleaning rooms at the motel.

Henson v. Henson (Tennessee Court of Appeals, Western Section, July 30, 2012).

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


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