In the case of McDaniel v, McDaniel, No. M2012-01892-COA-R3-CV (Tenn. Ct. App. July 29, 2013) out of Rutherford County, Tennessee, Knoxville divorce attorneys learn that trial courts must maximize the co-parenting time of both parents so long as that is in the children's best interests, and a trial court's failure to do so can result in reversal and remand for determination of a new plan.
Facts: The parties married in 1994 and Mother filed for divorce in 2011. After a trial, the marital residence was awarded to Father (Father desired it and Mother could not afford it) and because of that, with all other factors being equal, Father was designated primary residential parent "PRP" with Mother having 120 days per year. Mother appealed the PRP designation and the parenting schedule.
Analysis: T.C.A. 36-6-404 and T.C.A. 36-6-106 both contain a list of factors a trial court must look at to determine (the two lists are "substantially similar"). Here, the trial court found the following:
• Both parents showed they were caring, loving, motivated and active in the children's lives
• Mother , who did not work, provided care for the children when not in school or daycare
• Mother organized the parties' finances
• Father regularly "took over" parenting duties when he came home from work, and Mother would leave and run errands for the household
• Two witnesses testified that Father was the primary caregiver
• Both parties testified it would be important for the children to remain in the marital residence
• At the time of trial, when Father was awarded the martial residence, Mother did not have alternate living arrangements but was hopeful she could obtain housing nearby.
T.C.A. 36-6-106 allows trial courts to look at the contemplated future residences of the parents as well as the factor of continuity in the children's lives. Here, continuity weighed heavily in favor of Father. Accordingly, the trial court did not err in designating Father PRP.
T.C.A. 36-6-106 also states that in light of the children's best interests, the court should implement a plan that allows each parent to have "maximum participation" in the children' s lives. However, the trial court only awarded Mother 120 days, even though Father' s proposed parenting plan gave her 159, with no explanation for why that was appropriate. Accordingly, the Appellate Court could not find that the 120 days with Mother was in the children's best interests and reversed and remand. The trial court was directed to put down a parenting schedule that maximized participation of both parents.