Facts: After five years of marriage, Father filed for divorce. Thereafter, a protracted period of litigation ensued that lasted almost 3-1/2 years until trial.

Among the other evidence presented at trial, the trial court considered the testimony of the parties’ seven-year-old child.

The trial court found Father should be named the primary residential parent of Child. The trial court found Father was more capable of caring for Child financially, that Mother had a history of unstable relationships and volatile conduct, that there was evidence of Mother forcefully spanking her eldest child on one occasion, and that there was evidence Mother slapped Child one time a few weeks before trial.

The trial court also adopted a parenting plan proposed by Father in which Mother was given a total of 120 parenting days a year.

Mother appealed.

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

Testimony of Child. Mother first argued the trial court erred in permitting the seven-year-old Child to testify at trial.

Tennessee Code Annotated § 36-6-106(a)(7) requires the trial court to consider “the reasonable preference of the child, if twelve (12) years of age or older. The statute goes on to note that “the court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children.”

Trial courts must be cautious in deciding whether to allow a child as young as seven years old to testify. Under Tennessee Rule of Evidence 601, all witnesses are presumed competent unless otherwise provided by the Rules of Evidence or statute. No one is automatically barred from testifying simply because of age or mental status. So long as a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rule or statute does not provide otherwise, the witness is competent. Tennessee courts have held that age alone is an insufficient basis to conclude a child is not competent to testify as a witness at trial.

The Court rejected Mother’s argument, writing:

In this case, while [Child] initially indicated that he did not know the difference between a truth and a lie, which could preclude him from testifying, upon further questioning, it became clear that [Child] was aware of the difference between the truth and a lie, stating that telling a lie was a “bad thing.” Determining whether a minor child knows the difference between the truth and a lie has been held to establish competency to testify. Based upon the above facts, the trial court did not abuse its discretion in permitting [Child] to testify in a limited fashion.

Parenting Schedule. Mother then argued the trial court erred in adopting Father’s parenting schedule, which Mother felt greatly limited her parenting time.

There are currently two different statutes setting out non-exclusive lists of factors for the trial court to apply to help it reach the goal of determining a child’s best interest. Tennessee Code Annotated § 36-6-106, which applies to “cases requiring the court to make a custody determination,” states in making this determination 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 child’s best interest. This has been interpreted to mean 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.” Click here to read my post on the Rountree decision.

The other statute, Tennessee Code Annotated § 36-6-404, requires that a permanent parenting plan be incorporated into “any final decree or decree of modification in an action for absolute divorce, legal separation, annulment, or separate maintenance involving a minor child.” The statute further mandates that “a parenting plan must include a residential schedule, which designates in which parent’s home the child will reside on different days, and the court must designate a primary residential parent.” In determining the residential schedule, the court is to consider a list of factors set forth in Tennessee Code Annotated § 36-6-404(b).

The Court found merit in Mother’s argument, reasoning as follows:

As for the parenting schedule, however, the evidence preponderates against a parenting plan that limits Mother’s parenting time to 120 days a year. We have reached this conclusion based on several factors and facts. One, we find it significant that Mother was the primary residential parent during the three and a half years the divorce action was pending . . . . We also note that there was significant corroborating testimony by other witnesses that [Child] was happy and well-adjusted during the three and one-half years he was primarily with Mother. . . . In adopting a parenting schedule, the court is to consider the best interests of the child and we have concluded that the evidence preponderates in favor of a parenting schedule that does not greatly minimize the parenting time of one parent, either parent. . . .

[W]e reverse the decision concerning the parenting schedule and remand this issue for the trial court to adopt a parenting schedule that affords Mother more parenting time, although not as much as Father, considering that Tennessee Code Annotated § 36-6-106(a) favors a parenting schedule that gives each parent the maximum amount of time in accordance with the child’s best interests. Once the trial court has approved a revised parenting schedule, the trial court shall also modify the child support.

Thus, the trial court’s adoption of Father’s proposed parenting schedule was reversed.

K.O.’s Comment: It is worth noting that the Court describes a parenting schedule that provides 120 days to the alternate residential parent as one that “greatly minimizes the parenting time” of the ARP.

Strickland v. Strickland (Tennessee Court of Appeals, Middle Section, December 21, 2012).

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