In a complaint for divorce filed in Tennessee where a party is seeking full custody of their children, the court’s determination is based on the “best interest” of the children. Several years ago, the term custody was changed in favor of “parenting time” to diffuse the conflict between parents. The custodial parent having majority “parenting time” is deemed the “primary residential parent.” Parenting time was the preferred term over full custody as parents can agree to any arrangement where the number of days allotted to each parent equals 365 days. The primary residential parent has no more rights over the minor children than the other parent. The courts prefer that parties work out an agreement as to parenting time, however if they cannot then the court will make a determination. There are a number of statutory factors the court applies in its determination. These factors as enumerated in T.C.A. 36-6-106 as follows:
(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; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
(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; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(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; and
(10) Each parent 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.
In post divorce petition for modification of parenting time where a party seeks to modify the parenting time schedule, there must be a material and substantial change of circumstances. The courts have complete discretion in determining what constitutes a material and substantial change of circumstances. There is no formula as such matters are fact dependent. A trial court’s determinations of whether a material change in circumstances has occurred and whether modification of a parenting plan serves a child’s best interests are factual questions. See In re T.C.D., 261 S.W.3d 734, 742 (Tenn.Ct.App. 2007). Thus, determining the details of parenting plans is “peculiarly within the broad discretion of the trial judge.'” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn.1988) (quoting Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn.Ct.App.1973)). “It is not the function of appellate courts to tweak a [residential parenting schedule] in the hopes of achieving a more reasonable result than the trial court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn.2001). A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or circumstances which make the parenting plan no longer in the best interest of the child.
In considering these factors and making custody decisions, Tennessee courts are required to issue a decision which allows both parents the “maximum participation possible” in the child’s life. This issue came before the court of appeals in the matter of Hindiyeh v. Abed, where the father appealed the trial court’s order providing him only 80 days of parenting time which did not meet the statutory preference of maximum participation. Trial judges are afforded considerable discretion in arriving at the details of parenting arrangements. Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). The court of appeals found it “puzzling” why the father was not provided more parenting time given the number of favorable findings towards the father such as there was no evidence of abuse and the child was closer to the mother only because the child spent more time with the mother during the divorce proceedings. The court of appeals vacated the trial court’s order of parenting time and remanded the case back for the trial court to provide “significant” more parenting time to the father.
The General Assembly has made the following additional findings regarding parenting arrangements:
The [G]eneral [A]ssembly recognizes the detrimental effect of divorce on many children and that divorce, by its nature, means that neither parent will have the same access to the child as would have been possible had they been able to maintain an intact family. The [G]eneral [A]ssembly finds the need for stability and consistency in children’s lives. The [G]eneral [A]ssembly also has an interest in educating parents concerning the impact of divorce on children. The [G]eneral [A]ssembly recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care.(b) The [G]eneral [A]ssembly finds that mothers and fathers in families are the backbone of this state and this nation. They teach children right from wrong, respect for others, and the value of working hard to make a good life for themselves and for their future families. Most children do best when they receive the emotional and financial support of both parents. The [G]eneral [A]ssembly finds that a different approach to dispute resolution in child custody and visitation matters is useful. Id. § 36-6-401 (2010)(emphasis added).
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