This case struck me as odd because the father really wanted equal parenting time with his kids, but the trial court only gave him 91 days per year. When he complained, the Appellate Court suggested that he not worry about it because even though the trial court only counted 91 days in the schedule, the father actually has closer to 100.
Mother and Father became the parents of twin girls in May of 2008. The parents were never married and they each had their own residence. The romantic portion of their relationship ended sometime in 2010 or 2011, and they were apparently not able to agree on how much time the kids should spend with their father.
Father filed a petition with the Juvenile Court stating that Mother would not let him see the kids much and he asked that the court divide the parenting time with the kids equally.
At the trial, the parties both testified that when the relationship between the parents ended, the children lived with the mother most of the time. Each party admitted that the other was a capable parent, but each criticized the other in various ways. The father said that the mother had made it difficult for him to visit and communicate with his children. He also testified that the mother was overly controlling and protective of the children.
Mother testified that the father had sometimes left the children in the care of his disabled mother or one of his other minor daughters. She also said she believed the kids were sleeping on a cot in the kitchen at their father’s house. The father disagreed, stating that there was a “den area” near the kitchen with a bed.
After hearing all the testimony, the court said that it weighed all of the factors set out in the Tennessee custody statute and declared that the most important factor was “the importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment”. (Note that this was heard before the updated list of factors went into effect) The court declared that this was not a case in which equal parenting time would be appropriate. The court ordered that the mother would be the primary residential parent, and father would have parenting time on the first weekend of the month from Friday to Sunday evening, on the third weekend of each month he would have visitation from Friday evening until Tuesday evening. He would also have visitation every other monday from after school until 8:30, half of the holidays, and 3 consecutive weeks in July. A total of 91 days.
Is 91 days really 91 days?
On appeal, the father argued that the trial court arrived at the uneven parenting schedule because the court put too much emphasis on only one of the many factors that are supposed to be considered when setting a parenting schedule. He argued that if the court had considered all of the factors equally, he would have been awarded more parenting time. He also said that with only 91 days of visitation as ordered by the trial court, he would be unable to fulfill his parenting duties because he would only be a “weekend father”.
In reviewing the lower court’s ruling, the Appellate Court said:
We … note that in its ruling from the bench, the trial court mentioned that it had considered all the statutory factors for custody determinations before deciding that the best interest of the children would be served by awarding their primary custody to Mother. … In light of the trial court’s direct observation of the demeanor of the parties and its declaration that it had considered all the relevant statutory factors, we are unable to find that the trial court abused its discretion in designating Mother as the children’s primary custodial parent.
[A]lthough the parenting plan recites that Father will get only 91 days of parenting each year, a closer look at the plan reveals that Father will enjoy more parenting time than that bare figure indicates. Not only will he alternate two and four day weekends with the children every other week, he will also have them for a three week period each summer, alternating holidays and half of Christmas break and every other Monday from the end of school until 8:30 p.m. Those clearly amount to more than 91 days each year.
The above is what really jumped out at me about this opinion. Usually the Appellate Courts will simply say something to the effect of “The trial court has a large amount of discretion in these matters, and the judge of the trial court is in a better position to judge the credibility of the parties and their witnesses. Since we don’t see where the trial court abused its discretion, we’re not going to change anything.” In this case, however, the Court added this somewhat patronizing analysis of the number of days the father has with his kids.
How many days is it really? It’s hard to put an exact number on it. Although the Monday night visits are probably important to the father, it’s hard to count a 4-hour visit as a “day” of visitation. He has to deal with an exchange of the children back to their mother at 8:30, which means he’s going to be doing things that he wouldn’t be doing if the kids were spending the night. We normally think of a “day” as including an overnight.
If the father has a two-night and a 4-night visit with the kids each month, that’s 72 days. Plus, he has the 3 weeks in the summer which gives him an extra 15 days (21 minus the 6 he would have had anyway), for a total of 87. Add in half of the holidays and half of Christmas break, you might reach 100 days total, depending on how the holidays fall. Do you suppose that makes him feel better?
Custody cases can be complicated and you really need for your case to be presented to the judge properly the first time. If you are involved in a custody or visitation case, contact me to find out how I can help you.