Mother and Father divorced after 13 years, and they had three children together. At the divorce trial, the parents announced an agreement to continue their equal time, week to week, schedule. The only issues presented for trial were which parent would be designated the primary residential parent and which parent would have ultimate decision-making authority.

A psychologist testified that the current equal parenting time arrangement was working and that the children were well-adjusted, mentally healthy, and happy. The psychologist recommended that the  50/50 parenting time continue, acknowledging, however, that the parents’ inability to agree on “really anything” could potentially cause problems in the future.

The trial court rejected the agreement for equal parenting time and instead entered an order that established Father as primary residential parent during the school year with Mother to have parenting time every other weekend. Mother was designated primary residential parent during the summer, with Father having the children on alternate weekends.

Each parent had sole decision-making authority during times they were designated primary residential parent.

Mother appealed this decision, arguing that Tenn. Code Ann. §36-6-101(a)(2)(A)(i) provides that “Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child.”

In fashioning an initial permanent parenting plan, the trial court considers the comparative fitness of each parent by referencing statutory factors. Tenn. Code Ann. §36-6-106 directs the court to consider the following:

(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. . . .

(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; and

(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.

Furthermore, Tenn. Code Ann. §36-6-404(b) provides that, if the factors set forth above are not sufficient to resolve the parenting schedule, the Court should also consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

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

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

(13) 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;

(14) The reasonable preference of the child if twelve (12) years of age or older. . . .

(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

The Court of Appeals noted that the trial judge found the parents to “fight like dogs.” The best way to arrange parenting in this case, given the parties’ inability to work together, was to have one parent have custody during the school year and the other during the summer months. The Court of Appeals also recognized that the trial court found “the alternate-week schedule would not be successful over an extended period because of the parental differences of opinion.”

Furthermore, Tennessee Courts have previously found that these divided-time arrangements are actually a form of joint custody. In this case, the Court simply found that an equal parenting schedule throughout the year would not be successful over an extended period of time due to the parents’ differences of opinion. Therefore, the trial court crafted a plan that was intended to “minimize the children’s exposure to harmful parental conflict.”

The trial court’s decision was affirmed.

Comment: Trial courts do not typically overrule an agreement by parents as to the residential schedule or what is best for the parties’ children. This case likely would have turned out differently had the parties been able to agree on all points rather than airing their “dirty laundry” so to speak for the court to resolve the 2 issues addressed above.

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