64 Days of Parenting Time Satisfies Maximum-Participation Provision in Henry County, Tennessee: Gensmer v. Gensmer

Facts: Four years after the parties’ divorce, Mother sought to relocate with Child to Mississippi, an eight- to nine-hour drive from her residence in Tennessee. Father opposed the relocation, and sought to change the primary residential parent from Mother to himself.

parenting time in TennesseeAfter determining that the parties exercised substantially equal parenting time, the trial court concluded that it was not in Child’s best interest to relocate to Mississippi.

The trial court adopted Father’s proposed parenting plan and awarded Mother 64 days of parenting time each year. Specifically, Mother is to have Child each Presidents’ Day weekend, each Labor Day weekend, each fall break, each spring break, every other Thanksgiving break, the first week of winter break, and the entire summer vacation.

Mother appealed.

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

Mother argued that the trial court erred by awarding her only 64 days of parenting time each year.

Tennessee Code Annotated § 36-6-106(a) 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 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.

The Court concluded that, under the circumstances, 64 days of parenting time complied with the maximum-participation provision:

Considering the fact that the Child attends school in Henry County and that Mother has relocated to a house that is eight to nine hours away from the Child, it appears to us that the trial court has, in fact, complied with this statute by making an effort to permit Mother to enjoy the maximum participation possible in the life of the Child. Mother offers no suggestions regarding how the trial court could have awarded her more days during the year under the circumstances. Father indicated he would have been happy to continue sharing the parenting time 50/50 if Mother had decided to stay in Henry County rather than move to [Mississippi].

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[T]he trial court in this case has ordered a custody arrangement that allows each parent to enjoy the maximum possible participation in the child’s life to the extent that doing so is consistent with the child’s best interests.

The trial court’s judgment was affirmed.

K.O.’s Comment: (1) Compare this decision with that in Neveau v. Neveau. Like here, Neveau involved a case of long-distance parenting between parents living in Tennessee and Illinois. The Court of Appeals in Neveau determined that an award of only 66 days to the noncustodial parent was an abuse of discretion. Here, 64 days is fine.

(2) It’s difficult to understand why Mother didn’t propose how she could have more parenting time. To obtain relief from a court, you must ask for it.

(3) Absent extenuating circumstances, Tennessee lawyers should generally consider 80 days of parenting time to be the floor. See, e.g., In re Grace N.

Long-distance cases are tricky because the child is burdened with considerable travel time, which typically requires limits on parenting time.

As with all family-law issues, it comes down to the specific facts of each case. Still, the caselaw offers guidance to Tennessee family-law attorneys and trial-court judges.

Gensmer v. Gensmer (Tennessee Court of Appeals, Western Section, November 30, 2017).

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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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