Facts: Mother and Father,the parents of three children, divorced after 13 years of marriage. When the divorce trial began, the parents announced their agreement regarding the continuation of the equal time, alternate-week schedule they followed while the divorce was pending. The only issues presented for trial were (1) which parent would be named the primary residential parent, and (2) which parent would maintain ultimate decision-making authority.

A psychologist who performed a custody evaluation testified that the current alternate-week arrangement was successful in that the children were happy, mentally healthy, and well-adjusted. The psychologist recommended continuation of the current co-parenting schedule despite the parents’ inability to agree on other matters. He acknowledged, however, that the parents’ inability to agree about “really anything” could cause problems in the future.

The trial court rejected the equal time arrangement advocated by both parents. Instead, it entered an order establishing Father as primary residential parent during the school year with Mother to enjoy co-parenting on alternating weekends. The order further stated that Mother would be primary residential parent during the summer with Father having the children on alternating weekends. The trial court commented:

I am not so much concerned about exact equality, as I [am about] the children having some sort of continuity of contact with each of the parents and to grow up knowing and being close to their mother and their father…. Given the high state of animosity between the parents, that in this case, it is better not to have the week on and the week off, but to split it up between the summer months and the school months.

The trial court went on to designate Father the primary residential parent during the school year with sole decision-making authority during that time, and Mother the primary residential parent during the summer with sole decision-making authority during that time. This resulted in 248 days for Father and 117 days for Mother each year.

Mother appealed.

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

In fashioning an appropriate, initial permanent parenting plan, the trial court must evaluate the comparative fitness of both parents by considering numerous statutory factors. For example, Tennessee Code Annotated §36-6-106 provides that when determining an appropriate custody arrangement, the trial court shall consider the following:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; . . .
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers. . .
(6) The home, school and community record of the child;
(7)(A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) 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;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; . . .
(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
(10) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order.

Similarly, Tennessee Code Annotated §36-6-404(b) provides that if the limitations of § 36-6-406 are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(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 considering the record, the Court reasoned:

The court found that the parents were unable to agree or cooperate on certain matters, noting that they “fight like dogs.” The court opined that the best way to arrange co-parenting in this case was “to have one parent have custody during the school year and the other parent to have custody during the summer months, and to have each of them have the decision making authority during that part of the year in which they have primary custody.” The court found that the alternate-week schedule would not be successful over an extended period because of the parental differences of opinion….

[W]e conclude that the trial court’s findings are supported by a preponderance of the evidence. Both parties admitted at trial that they disagreed on certain major decisions involving the Children, specifically which church and school the Children should attend.

Accordingly, the trial court was affirmed.

K.O.’s Comment: It is rare for a court to overrule the agreement of both parents as to what parenting arrangement is best for their children, even more so when that arrangement is also advocated by an evaluating psychologist. The last time we saw anything like this on this blog was the McCall v. McCall case. This underscores the risk parents take when they submit the details of their children’s upbringing for a court to determine. It is unfortunate for these children that their parents were unable to cooperate to such an extent that a court did not feel comfortable approving a parenting arrangement that both parents and a psychologist testified was in their children’s best interests.

Holmes v. Holmes (Tennessee Court of Appeals, Eastern Section, February 3, 2014).

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