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Judges Must Follow Statutory Instruction to "Maximize Co-Parenting Time" for Both Parents in Tennessee

August 7, 2013 by The McKellar Law Firm, PLLC

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.

Primary Residential Parent Determination Depends On T.C.A. 36-6-106 Factors

In the case of Wood v. Wood, No. W2012-01250-COA-R3-CV (Tenn. Ct. App. May 16, 2013), Knoxville divorce attorneys learn that trial courts determine the primary residential parent based upon the factors found in T.C.A. 36-6-106.

Facts: The parties married in 2007 and separated in 2010 after having one child together. At the trial, both alleged that the other had an alcohol abuse problem, and Mother additionally alleged that Father was guilty of physical violence as well. Father admitted his DUI conviction, other alcohol related offenses and two arrests for domestic violence that occurred during the marriage. Father alleged that the Mother admitted she had several relationships with different men and had introduced them to the minor child. At the time of trial, Mother worked from 7am to 7pm three days a week, but had a 2 hour commute. Father worked for his parents, who were also proffered as alternate caregivers. However, testimony showed that Father would sometimes leave the child in the care of his parents due to his drinking and social life. Mother also argued that the grandparents interfered with her relationship with the children. The trial court named Father the primary residential parent due to his flexible work schedule and support system. The trial court refused to impute Father's income to account for the free housing provided by his parents as Mother requested. Mother appealed.

Analysis: The Court of Appeals first turns to T.C.A. §36-6-106(a), which outlines the factors a court is supposed to use to determine the primary parent and the co-parenting schedule. Based upon those factors, the Appeals Court made the following analysis: that both parents were devoted to the child and this factor favored neither (same as the trial court); both parents were capable of providing for the child's needs and favors neither party (same as the trial court); that the continuity and stability factor favors Father, due to Mother's many other romantic relationships, Mother have relocated the child twice due to her job changes and Father having lived and worked in the same location continuously (same as the trial court); that stability of the family until also favored Father due to Mother's commute and the closeness of the paternal grandparents (same as the trial court); that the evidence of physical and emotional abuse to the child favored neither party (same as the trial court); all other factors were found to be equal or not applicable. Accordingly, the Appeals Court upheld the trial court's decision to make the Father the primary residential parent.

Next, the Court looked at whether the trial court erred in failing to impute income to Father because he received free housing. The Court found that Mother presented no evidence regarding the reasonable rental value of his home. The Court noted that even if Mother had shown the housing was a fringe benefit of Father's employment, that the Court had no way of determining from the evidence presented how much income to actually impute. Therefore, the trial court was correct in refusing to impute income to Father based upon his free housing in that the record lacked sufficient data with which to do so.