In Henson v. Henson, No. W2011-02504-COA-R3-CV (Tenn. Ct. App. July 30, 2012), Tennessee divorce attorneys learn that courts select the primary residential parent in a manner that "give[s] each parent the maximum amount of time possible with the child, in accordance with the child's best interests," pursuant to Tenn. Code Ann. Section 36-6-106(a).
The facts of the case are as follows: The parties had two minor children. After a divorce, Father lived in a three-bedroom mobile home with six other people, most of whom were relatives. While Mother initially moved in with her mother, she later moved to a motel room where she did not have a kitchen; although the minor children had never met her boyfriend, she used his kitchen to cook for them. Mother had a job as a maid in the motel where she lived. Both minor children had been prescribed medication for attention deficit disorder and were involved in special education programs for learning disabilities. Mother was attentive to their medication and was primarily responsible for transporting the children to school and doctor visits.
At trial, the minor children each testified that Father's brother did not treat them well, that Father's house was crowded, and they would rather live with Mother. Father's testimony indicated that he was not aware of the children's medications or dosage. The parties' adult daughter's boyfriend (whose relationship with Mother was tense and who later moved in with Father) testified he had lived with Mother and her boyfriend and had witnessed them smoking marijuana, drinking alcohol, and stealing. At the conclusion of the trial, the court designated Mother the primary parent, also providing that there was to be no alcohol consumption in front of the minor children on the part of either party and that Mother's boyfriend was not to see the children.
The appellate court decided the sole issue of whether Mother or Father should be the primary residential parent.
On appeal, the Court stated its preference for joint parenting and referenced Tenn. Code Ann. Section 36-6-106(a), which provides that in accordance with the best interests of the child, "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 [certain] factors... [such as] the location of the residences of the parents, the child's need for stability" and other "relevant factors." Factors that the court will consider pursuant to Tenn. Code Ann. Section 36-6-404(b) include: "the parent's ability to instruct, inspire, and encourage; relative strength, nature, and stability of the child's relationship with each parent; the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care; the degree to which a parent has been the primary caregiver; the love, affection, and emotional ties existing; the emotional needs and developmental level of the child; the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; 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; the reasonable preference of the child if twelve (12) years of age or older/the preference of older children should normally be given greater weight than those of younger children; each parent's employment schedule; and any other factors deemed relevant by the court."
Emphasizing the minor children's need for "stability and continuity", the appellate court affirmed that Mother was the appropriate choice for primary residential parent. Mother served as the primary caregiver, provided transportation, and was aware of the medication that the minor children required. Mother supervised the children, cooked for them, and only went to her boyfriend's house to do laundry and cook (never introducing the children to her boyfriend). Both children preferred to live with Mother instead of at Father's residence, where it was crowded, they were unsupervised and lacked structure, and they were subjected to insults from Father's brother. At Father's residence, the parties' adult daughter (who has a child and who has a mental illness for which she is on medication) was primarily responsible for watching the minor children on account of Father's employment schedule; the parties' adult daughter felt overwhelmed with the additional responsibility of caring for her younger brothers. Therefore, the court scheduled the minor children to spend time with Father on weekends and Mother during the week.