Facts: Mother and Father, both psychiatrists, married in 1998 and have two children. They divorced after 14 years of marriage.

Proof at trial showed the older son suffers from speech delay, has a lot of anxiety, and requires a great deal of structure in his life as a result of his issues, which include attention deficit hyperactivity disorder and anxiety disorder. The younger son is a very intelligent child who requires challenges, and his educational environment is structured accordingly.

Mother testified that Father had minimal participation in the children’s lives.  She also testified that he worked extra jobs during the marriage even though they did not need the extra money.

Father testified that he was very much involved in the upbringing of both children. Father said he had completed his earlier moonlighting obligations such that he had flexibility and was prepared to be available to the children on a weekly alternating basis, and to attend to their special needs. Father described how he assisted the children with their homework and got them involved in sports.

The trial court declined to grant Father’s request for equal parenting time with the children, stating:

There’s no doubt that mom was the primary caregiver, she was the decision-maker, she was the mover, she was the shaker, she was the one that got it done, she was in charge of these kids. That’s not necessarily a bad thing, that’s the way some families work. But for whatever reason, dad decided to work overtime, he decided to moonlight…. He was not there like mom was.

The trial court entered a parenting plan that designated Mother as the primary residential parent of the children. Father was awarded 134 days per year of residential parenting time.

Father appealed.

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

Father argued the trial court erred in declining to enter a parenting plan providing for equal custodial time with the children on an alternating weekly basis.

Pursuant to Tennessee Code Annotated § 36-6-404, when establishing a residential schedule, a court shall consider:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) 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 interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(11) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;

(14) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

After reviewing the record, the Court ruled:

A trial court is not charged simply with calculating the amount of time each parent spent with the children over the course of their lives, then applying that ratio to form a residential schedule. The children’s best interest is paramount. In this case, the Children have various special needs. The Trial Court found that equal time would be disruptive to the Children in light of these special needs. Furthermore, the Trial Court found that Mother was the ‘mover and shaker’ with respect to the Children. Given the testimony regarding Father’s moonlighting, this was not an illogical conclusion. Such a finding does not imply that Father was an absentee or derelict father, simply that Mother had more of a consistent presence in the lives of the Children.

Finding that the trial court did not abuse its discretion, the Court affirmed the trial court.

Pandian v. Rodriguez (Tennessee Court of Appeals, Eastern Section, April 23, 2013).

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