Facts: Mother and Father are the parents of two children. They divorced after eight years of marriage.
The trial court found that both parents were able and loving parents and active in the children’s lives and that they provided consistent and quality care to the children. The court also found that all but two of the relevant statutory factors were essentially equal. Because Mother admitted that she could not afford the marital residence and Father desired to retain the residence, the marital residence was awarded to Father. Further, because both parents testified that it was very important for the children to continue to reside in the marital residence, the court found that Father could provide continuity for the children and, thus, Father was designated as the primary residential parent. Although Father had proposed a parenting schedule that would have given Mother 159 days of parenting time, the trial court set a parenting schedule giving Father 245 days of parenting time and Mother 120 days each year.
On Appeal: The Court of Appeals reversed the trial court.
Mother challenged the parenting schedule adopted by the trial court, which limited her parenting time to 120 days a year in contrast to Father’s 245 days of parenting time. She argued that Father’s proposed parenting schedule afforded her 159 parenting days, 39 more than the trial court’s plan.
The Court reversed the trial court, writing:
Tennessee Code Annotated § 36-6-106(a) specifically provides that, taking into account the children’s best interests, the trial court shall adopt a parenting plan and schedule that permits each parent to enjoy the maximum participation possible in the children’s lives that is consistent with the factors set forth in the statute. As noted above, the majority of witnesses testified and the trial court found that both parents were equally capable and active in the children’s lives and in caring for them and the primary reason Father was designated as the primary residential parent was the factor of continuity, which was primarily dependent on who was awarded the marital residence. We also find it significant that Father submitted a proposed parenting schedule that provided Mother with 39 more parenting days than the schedule adopted by the trial court. For reasons unexplained by the record, the trial court did not make findings to state why Father’s plan, or a plan more similar to his plan, was not in the children’s best interests nor did the court make findings to state why a substantial reduction in Mother’s parenting time from Father’s plan was in the children’s best interests.
Considering the above, we are unable to conclude that the parenting schedule adopted by the trial court is in the best interests of the children. Therefore, we reverse the parenting schedule and remand this issue so that the trial court may consider adopting a revised parenting schedule that maximizes the participation of both parents consistent with Tennessee Code Annotated § 36-6-106(a).
Accordingly, the parenting schedule was reversed and remanded to the trial court to adopt a revised parenting schedule that permits each parent to enjoy the maximum participation possible in the children’s lives consistent with the factors set forth in Tennessee Code Annotated § 36-6-106(a).
K.O.’s Comment: This was an odd case. The trial court awarded Mother less time than both parents felt was best for the children. While a trial court certainly has the power to overrule the desires of both parents, this trial court did so without making the necessary findings of fact to sustain that decision on appeal. Further, the evidence was uncontroverted that both parents were active, fit, loving parents. Importantly, I do not think the outcome of this case turned upon the “maximum participation” provision of Tennessee Code Annotated § 36-6-106(a). The Court’s passing references to that provision have no substantive effect or import, in my opinion.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.
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