Facts: An agreed parenting plan was entered in September 2012 granting Mother 245 days of parenting time to Father’s 120 days. Father, an airline pilot with an unfixed work schedule, was granted a “minimum” of 10 days each month. The parties were to operate in good faith toward coordinating Father’s parenting time around Father’s work schedule.

In April 2014, Father petitioned to modify the parenting plan, alleging that Mother had refused him additional parenting time.

Mother filed a counterpetition seeking a more consistent schedule rather than 10 days in any given month. Mother testified sometimes 20 to 30 emails were required to arrange Father’s parenting schedule. Mother testified to 70 occasions on which Father was late to pick up Child or canceled altogether.

Father testified that in his profession as a pilot, there is a bidding process by which one obtains his or her work schedule. The schedules are bid upon according to seniority. Father could try to bid for certain days to accommodate a precise schedule for visitation, or trade for it, but he could not guarantee he would get that schedule.

The trial court kept the parenting schedule as is but required Father to give a list of his available parenting days to Mother within 24 hours of receiving his schedule. Mother then has 36 hours to advise Father of which 10 days he will have that month. If Mother fails to respond within 36 hours, then Father can pick his 10 days. If Father misses or cancels any of those 10 days, the days are forfeited.

Mother appealed.

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

Mother argued the trial court should have approved her parenting plan which would establish a specific one-week schedule for Father to visit Child each month. According to Mother, Child needs consistency above all else.

The Court disagreed, and in doing so made some interesting comments regarding the maximum-participation provision:

Father is an airline pilot who must bid for his work schedule and is not currently in a position to guarantee specific days for his availability to visit the Child. The almost certain effect of adopting Mother’s proposed parenting plan would be to curtail the Child’s time with Father. Tennessee Code Annotated § 36-6-106(a) instructs courts 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 this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.” This is not an ironclad rule, and may be superseded by other relevant factors, but, barring evidence to the contrary, our starting point is to proceed with an eye toward maximizing parenting time for each parent. Mother’s proposed parenting plan would almost surely limit the Child visitation time with Father. At various points in her argument, Mother asserts that Father places his career ambitions above the best interest of the Child. We believe, however, that the Child’s best interest is not served by forcing Father to choose between his career and a fixed visitation schedule. Father’s continued professional success as a pilot has and should continue to inure to the Child’s best interest. This of course in no way means that Father can cite his career to disregard the parenting plan. It means merely that a flexible visitation schedule serves to maximize the Child’s time with Father, while acknowledging the reality of Father’s profession. We find such a balance to be in the Child’s best interest, as did implicitly the [trial court.].

Thus, the trial court’s parenting plan was affirmed.

K.O.’s Comment: (1) In case you missed it, the Court says a trial court’s “starting point” when creating a parenting plan “is to proceed with an eye toward maximizing parenting time for each parent.”

(2) Compare this with the outcome in In re Cannon H., where the Court held that a flexible schedule very similar to the one above is only appropriate when the parents are able to communicate well. There, the Court said in the absence of effective communication between the parents, a structured schedule is required. Or compare it with Roland v. Roland, where the Court described a parenting schedule “based entirely on Father’s work schedule” as “unorthodox and problematic” and as having “no consistency from week to week.”

In re Maddox P. (Tennessee Court of Appeals, Middle Section, January 17, 2017).

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