Tennessee Moves Toward Equal Parenting Time…But Not So Fast!

Whether you live in Nashville, Franklin, Brentwood, Murfreesboro, or Hendersonville, going through a divorce is not fun, especially when minor children are involved, and a determination must be made about how much parenting time each spouse will have after the smoke clears.

In theory, Tennessee has moved closer to equal or shared custody arrangements and equal parenting time becoming the norm (in contrast to the old “standard” visitation arrangement, where most divorced fathers got to see their kids every other weekend, some holidays and during part of school vacation periods).

What Tennessee Law Says About Parenting Time

Indeed, in 2011, the Tennessee Legislature enacted T.C.A. 36-6-106(a), which 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 below, the location of the residences of the parents, the child’s need for stability and all other relevant factors.

Some courts have written that the new law means that the legislature has expressed a preference for joint custody absent clear and convincing evidence that it would be inappropriate. However, the exceptions can swallow the rule, and the outcome in any particular case is still subject to numerous caveats and uncertainty. Disparate facts make for different results, and trial judges see things based on their own individual experiences and predilections. The judge deciding your parenting time in Gallatin may have a perspective quite distinct from that of the judge deciding child custody and visitation in Murfreesboro.

What the Court Considers Regarding Parenting Time
In determining parenting time, courts are to consider numerous factors. The weight and importance given to each of the following criteria is not subject to objective, scientific measurement. Just take a look at this list, and you can see how it is rife with the potential for differing results through a subjective selection of whichever factor the judge happens to find most important in any given case.

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; …

(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7) (A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; an

(10) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.

With so many factors to take into account, it can readily be seen that a trial court judge can find a basis on which to limit a parent’s time with his or her children to much less than 50%. In addition to the foregoing, T.C.A. 36-6-406(d) provides:

A parent’s involvement or conduct may have an adverse effect on the child’s best interest, and the court may preclude or limit any provisions of a parenting plan, if any of the following limiting factors are found to exist after a hearing:

(1) A parent’s neglect or substantial nonperformance of parenting responsibilities;

(2) An emotional or physical impairment that interferes with the parent’s performance of parenting responsibilities as defined in § 36–6–402;

(3) An impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting responsibilities;

(4) The absence or substantial impairment of emotional ties between the parent and the child;

(5) The abusive use of conflict by the parent that creates the danger of damage to the child’s psychological development;

(6) A parent has withheld from the other parent access to the child for a protracted period without good cause;

(7) A parent’s criminal convictions as they relate to such parent’s ability to parent or to the welfare of the child; or

(8) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

What happens in practice?
Well, in a recent Rutherford County divorce case, the court limited the father to just 85 days where the evidence showed, among other things, that until the children were seven and four years of age, he drank alcohol excessively at least six nights per week, and that he had posted pictures of himself and the children with his girlfriend on the internet while he was still married. His past conduct hurt him severely on the parenting time issue. Similarly, in a Williamson County divorce case, the court awarded the father only 85 days of parenting time a year because he had a prior history of drug abuse.

And, conduct does not necessarily have to be bad in order to adversely affect a parent’s time award. In a recent Wilson County divorce, the father was limited to 108 days a year of parenting time where the court noted, “These parents share substantially equal love, affection and emotional ties with the child. Father voluntarily pursues more outside interests than does Mother, which interests take away from Father’s voluntary parenting opportunities. These include night law school [and] attendance at sporting events.” So, while being a current law student is obviously better than being an ex-drunkard or drug addict, and there’s nothing wrong with going to football games, even these more wholesome activities can cost you days in the parenting time calculation.

Child custody cases are like snowflakes; each is unique.
The outcome is going to turn on the facts of your particular situation, the credibility of witnesses, the advocacy skills of the attorneys and the perceptions and perspectives of the trial court judge (who is not likely to be second guessed by the Court of Appeals). The bottom line is that the only thing certain about these cases is that they are unpredictable, and it is not safe to assume that equal or nearly equal parenting time will be awarded.

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