“Standard Visitation” is a term you’ll hear at least a few times if you’re ever involved in a custody battle. A lot of people think they know what it is, and a lot of people (including lawyers) insist that it’s just the way parenting time is split up in Tennessee. What it really is, is a cop-out and the result of lazy lawyers and judges.
What people think of as a “standard” visitation schedule is one parent has the child most of the time and the other parent has overnight visits on every other weekend and maybe a dinner evening during the week. This is the schedule may non-married parents fall into as part of their divorce, but I question whether many of them knew there were other options available to them. The truth is you (and the judge) have a lot of flexibility when dividing the parenting duties for your children and you can develop a plan that works best for your family.
Where does this come from?
I hear this most when working with Child Support Services (“CSS”), because there is a reference to such a schedule in Tennessee’s Child Support Guidelines. When given the task of putting child support in place for parents who do not already have a parenting schedule, the attorney for CSS will rely on rule 1240-2-4-.04(7)(a) that says:
These Guidelines presume that, in Tennessee, when parents live separately, the children will typically reside primarily with one parent, and stay with the other parent a minimum of every other weekend from Friday to Sunday, two (2) weeks in the summer, and two (2) weeks during holidays throughout the year, for a total of eighty (80) days per year.
This is from the administrative rules that govern how child support is calculated. Like the rule says, it’s only a presumption for purposes of calculating child support. There is absolutely nothing that says this is some sort of default parenting schedule that non-married parents should follow. In fact, the rules contain a list of goals the state has for the regulations, and the only one that even vaguely relates to child custody or visitation is one that says a goal is to “Encourage parents paying support to maintain contact with their child”. That’s it!
Parenting schedule for real
Our legislature has given us a set of statutes that outline how judges are supposed to set a parenting schedule in cases of “annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child”. The statute is T.C.A. 36-6-106, and the general rule is that the custody determination shall be made “on the basis of the best interest of the child. 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”. The court is then instructed to consider a list of factors, which I talk about in this blog post.
The statutes contain no presumptions favoring any type of schedule, and there is no language favoring the male or female parent over the other. The judge is given the “widest discretion to order a custody arrangement that is in the best interest of the child”, and the statutes are clear that each parenting plan should be developed based on the unique facts of that individual case. The overriding factor is the best interests of the child or children. You see that phrase over and over in the Tennessee Code.
Finally, the parties are given a great deal of leeway to design their own parenting schedule. The judges know that people are generally most willing to comply with a schedule they helped create on their own. For that reason, the courts will give parents every opportunity to settle their dispute in some way other than a trial. So long as the schedule is made for the benefit of the children (rather than the parents) the court will likely approve your plan.
What you need to know
There are a lot of misconceptions about how parenting time is supposed to be divided between the parents. Some people believe that the phrase “maximum participation possible” means that each parent should have exactly 50% of the child’s time. That’s not the case either, and any rule like that would remove all of the court’s ability to craft a schedule that works best for the children.
Despite what I’ve written here, it may be that the “standard visitation” schedule described above really is the best for your situation. If a schedule like that works best for you and your children, there’s absolutely nothing wrong with it. The only point of this post is to refute the notion that there is some default schedule people are expected to use.
If you need help with a situation involving custody or child visitation, contact me to find out how I can help you.