Tennessee’s “Maximum Participation” Provision and Right of First Refusal: Roland v. Roland

Facts: Mother and Father, parents of two children, filed for divorce. During their separation, they took turns having the children stay with each parent for a week at a time.

Mother filed a proposed parenting plan designating her as the primary residential parent and allowing Father 80 days of parenting time each year.

Father filed a proposed parenting plan designating him as the primary residential parent and allowing Mother 90 days of parenting time each year.

The proof at trial showed Father is a firefighter who has the typical firefighter’s schedule of working 24 hours straight followed by 48 hours off.

The_Babysitters_Club_logo_1416427992316_9690111_ver1.0_640_480Following the trial, the trial court entered a parenting plan that awarded the children to Father during the 48 hours Father is off from work and awarding them to Mother during the 24 hours Father is working. This resulted in 265 days for Father and 120 days for Mother.

Mother appealed.

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

Mother argued the trial court’s parenting schedule is illogical and an abuse of discretion.

After reviewing the record, the Court reasoned:

The number of days the court awarded Mother is not objectionable, but the residential schedule is unorthodox and problematic because it is based entirely on Father’s work schedule and has no regularity to it….

The trial court’s residential schedule has the children changing residences multiple times each week, without regard to school days, weekends, holidays, or summer vacations. There is absolutely no consistency from week to week. Although Mother is awarded the children for one-third of the year, she has no continuity with the children for more than twenty-four hours at a time…. As Mother aptly notes, “this schedule basically relegates Mother to the position of ‘babysitter’ for the children while Father is working and gives her very little meaningful opportunity to parent her children, even as an alternate residential parent.” The trial court’s schedule . . . constitutes an abuse of the trial court’s discretion….

As an appellate court, we are not in a position to create a permanent parenting plan anew. Therefore, we remand this case to the trial court with directions to schedule a hearing for the purpose of setting up a new permanent parenting plan, with Father designated as the primary residential parent. The parenting plan should be based on the form provided by the courts, where the children have a regular schedule; the children are scheduled to spend holidays with one parent or the other, on a regular, alternating basis from year to year; the parents split the time they have with the children during the December/January school break; and where the parents have the opportunity to spend one-half of each summer vacation with the children.

Father testified at trial that his mother often helps him care for the children when he has to leave for work early in the mornings and the children are at his house. Father’s mother has fed the children, driven them to and home from school, and stayed overnight with them when Father is unavailable. This arrangement may deprive Mother of time she could have with the children. In this particular circumstance, this arrangement may not comply with the statutory directive that courts are to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10) . . . .” Thus, the court should consider whether the parenting plan should specify that if Mother or Father has a conflict during her or his parenting time such that she or he is unavailable to care for the children or drive them where they need to be, that parent shall inform the other parent in a timely manner and give the other parent the right of first refusal to be with or provide for the children.

Accordingly, the trial court’s parenting schedule was reversed.

K.O.’s Comment: Compare the “maximum participation” language here with the ruling in Leonard v. Leonardo. Taken together, they certainly suggest the maximum participation provision means the child usually should not have to rely on a third party caregiver when the other parent is available to exercise parenting responsibilities. I think these two cases illustrate what will become the first consistent impact of the maximum participation provision.

Also, the Court’s dicta regarding alternating holidays, splitting school breaks, and equally dividing the summer vacation may be useful to Tennessee family law attorneys working on parenting schedules.

Roland v. Roland (Tennessee Court of Appeals, Middle Section, September 29, 2015).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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