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Client's Introduction to Tennessee's Parenting Plan Law

As of January 1, 2001, the concept of "custody" disappeared from most of Tennessee’s law books. This was a direct result of our new "parenting plan" legislation. As understanding of this law evolves, every judge and family law attorney across the state will for years to come struggle with its interpretation. To many clients’ dissatisfaction, the exact answer to a particular question may not exist until a Judge rules on the issue. Even then, the Judge’s decision has no precedential effect unless the Court of Appeals affirms it. This article is designed to provide a basic introduction to the new law and, thus, will not address everything you need to know. Your lawyer will need to answer your remaining questions, at least as far as they can be answered at this point.

Generally, the new law requires, in order for the parties to receive a divorce, court approval of a permanent parenting plan which complies with certain strict statutory requirements. For those divorces which have become final prior to the enactment of the parenting plan law, any change with respect to the children must comply with the new law. Statutory requirements for the permanent parenting plan include listing out in detail the responsibilities of each parent with respect to decision-making; to where the children will sleep during weekdays, weekends, and holidays; to educational decisions; to financial support; to the procedure by which the parents will handle disagreements (most parties will choose mandatory mediation); and to any other important child development issues. Also, the law requires that the plan list all rights possessed by the parents as enacted by the Legislature, which include the right to telephone access with the children and unfettered rights to medical and school records. The parenting plan form is very detailed and will require a sincere effort by both parents for the agreement to be reached. This law, in effect, will require parents to act like adults. Few exceptions exist, but important exceptions apply in those situations involving domestic violence.

Creating this permanent parenting plan can be procedurally challenging. If there is not immediate agreement between the parties, mandatory mediation is an extra step that a party can request or a court can impose. For those parents seeking divorce who can get along, this should not pose a serious problem, only a few extra headaches. For those parents who cannot agree and do not get along, a serious investment of time and resources will be needed. In theory, this investment should pay dividends in the long run, reducing the need and expense of returning to the court system when conflicts arise.

As a beginning point, there are new terms to learn. "Primary residential parent" takes the place of "sole custodian." "Residential time" replaces "visitation." Taking the old words out of our vocabulary will be challenging, especially since the new terms do not mean exactly the same as the old. Final decision-making authority, a.k.a. control, as a concept still exists. Final decision-making authority will most likely be possessed by the "primary residential parent." For day-to-day decision-making, the parent with whom the children are residing at that time will have the say-so. For major decisions, however, there will be an opportunity to divide important parental responsibility between the parents. The new law created a parenting plan form which, by design, can allow for the splitting of decision-making authority by subject matter between the parents on such important issues as education, health care, extra-curricular activities, and religious training. Depending upon the particular parent’s perspective, the permanent parenting plan will either help the parties avoid conflict or create conflict where it did not exist before.

According to the new law, shortly after filing for divorce, both parents must attend a parenting education seminar lasting at least four (4) hours. The only exception to this requirement may be those cases in which a parenting plan has already been agreed upon. Even in cases of complete agreement, some judges might require everyone to attend the classes, regardless of individual situations. In some cases where sincere disagreement appears inevitable, the parties may first be required to seek court approval of a temporary parenting plan. Temporary parenting plans require almost the same amount of detail as permanent parenting plans but are not designed to last forever.

In the event no permanent parenting plan is agreed upon, the first stop will most likely be mandatory mediation. Although there are other forms of alternative dispute resolution allowed, mediation will be the most common form. If the alternative dispute resolution process fails, the parents will head towards trial. Proposed permanent parenting plans must be filed and served no less than forty-five (45) days prior to the trial date. In the event one parent fails to file a proposed parenting plan, that parent runs the risk of having the filing parent’s plan approved by default. Each proposed parenting plan must include an attached statement of income and expenses and be signed under oath that the plan was proposed in good faith and in the best interest of the child.

One bit of good news is that this new law has been tested in some parts of the state. The report from those courts is that a vast majority of the resulting parenting plans have looked very similar to those Marital Dissolution Agreements we have seen in the past. Other than the imposed mandatory alternative dispute resolution requirement, the only major trend has been an increase in co-parenting arrangements which provide for almost equal residential time with the children.

The new parenting plan law has not changed child support. Prior to the new law, the parent with whom children resided more often received support according to the Guidelines, unless the other parent had more than "standard visitation." On average, if a child resided with a parent more than three (3) nights out of every fourteen (14), that parent could argue in favor of a reduction from the Child Support Guidelines. The parenting plan law, so far, has not changed this situation.

Strategically, those parties who are not represented by an attorney can be at a serious disadvantage. Relying upon the statements of an opposing spouse who is represented can be damaging, especially if the statements are not completely candid. As before the new law, the first few decisions following separation or filing the divorce are very, very important. Under the new parenting plan law, waiting to take action or seek advice can be a very bad thing.

Without a doubt, the new parenting law can create opportunities for parents to put aside differences and address the actual best interests of the children. While the new law does create an additional fat layer of bureaucracy for every divorcing parent, serious detriment resulting from this change in the law will come only to the uninformed parent or those parents who would have cooperated anyway. The public demanded a new law be created to revolutionize the litigation nightmare that custody fights created. Right or wrong, the new parenting plan law is here.

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The Tennessee court may award child custody to either parent, or to both parents in the case of joint custody or shared parenting based on the best interests of the child, taking the following factors, among others, into consideration: the emotional ties, love, and affection between the parents and the child, the ability of the parents to provide adequately for the child, the quality of the child's adjustment to the present environment, including the home, school, and community, provided there is no evidence of child abuse, and the parenting abilities of each parent, including their willingness to encourage a close and continuing relationship between the child and the other parent.
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