Facts: Mother and Father are the unmarried parents of Child.
Father petitioned for parenting time with Child.
After hearing the proof at trial, the trial court awarded Father parenting time of alternating weekends and three hours every Tuesday night. Holiday time was to be shared and Father was awarded one week of continuous parenting time during the summer in the first year, two weeks the following year, and three weeks each year thereafter.
Notably, the trial court did not make specific findings of fact or state the statutory factors upon which it relied in setting the parenting time schedule. In its oral ruling, the court stated only:
Let me tell you why I am doing this, sir. You got to — you go to work at six o’clock. I hate when a child has to get up at 4:30 or whatever or — whatever and get over there, and you don’t have any time with the baby.
The trial court further observed that “both parties are honest, caring and loving people…. Father is a good man and a good father and the Mother is a good lady and a good mother.”
On Appeal: The Court of Appeals reversed the trial court.
Father argued the parenting schedule failed to provide him the maximum amount of parenting time. He suggested the evidentiary record “supports a more balanced parenting schedule.”
Tennessee Code §§ 36-6-106 and 36-6-404 specify factors a court must consider in making a child custody arrangement and in designing a permanent parenting plan. Tennessee Code § 36-6-106(a) requires that any such determination be made in the best interest of the child and provides:
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 in the life of the child consistent with the factors set forth in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.
Tennessee Code § 36-6-404(b) requires that each parenting plan include a residential schedule which, among other things, “encourage[s] each parent to maintain a loving, stable and nurturing relationship with the child.”
After reviewing the record, the Court concluded:
In the absence of [specific findings of fact], we have reviewed the testimony . . . and conclude that the evidence preponderates against the parenting time schedule adopted by the court. The reason given by the court is, standing alone, insufficient justification to limit Father’s parenting time, particularly at times when Father is not at work. In addition, we fail to see any justification for limiting Father’s continuous parenting time during the summer months in the manner ordered.
We therefore reverse the residential parenting schedule and remand the case for the court to adopt a schedule that affords Father more parenting time, considering that Tennessee Code § 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.
Accordingly, the trial court’s parenting schedule was reversed and the matter remanded for a schedule that gives Father more parenting time.
K.O.’s Comment: I hesitate to read too much into this case because the lack of factual findings or any discussion of the statutory factors by the trial court can distinguish this case from others. Nonetheless, family law litigators should take note that a fairly common parenting schedule has been reversed for running afoul of the “maximum participation” provision in Tennessee Code § 36-6-106(a). This case may be helpful to those advocating for more parenting time at the trial court level.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.