When a married couple chooses to divorce, there are a number of important considerations that will be determined by the parties or the court. When there are minor children from the marriage, there are additional determinations that must be made, including a parenting plan. In Gentry v. Gentry, the Court of Appeals of Tennessee examined the state’s laws with regards to parenting plans and held that a court had no authority to determine that a parenting plan was temporary.
In the case, the parties were a married couple who divorced in late 2010. The mother was named as the primary residential parent of the parties’ child, while the father was granted co-parenting time. The father was also required to pay child support in accordance with the divorce decree. The divorce decree stated that the parties would revisit the matter of custody in one year’s time in order to determine whether the father should be given additional co-parenting time.
After one year, the parties attended a hearing on the matter. At the conclusion of the hearing, the court entered an order including a permanent parenting plan. The order also sustained the mother’s role as primary residential parent but adjusted the father’s support payments. Again, the court’s order provided that the matter would be reviewed after one year.
The next year, the father petitioned the court to modify the parenting plan in order to allow him more co-parenting time. The court recognized that it had utilized a document entitled “Permanent Parenting Plan,” but that it was in fact a temporary plan because the court directed a review of the matter after a period of one year. The court corrected the terminology contained in its order as such. The mother then appealed.
The appeals court began its analysis with the Tennessee statute regarding parenting plans. The law, in pertinent part, states that upon any divorce action, the court shall incorporate a permanent parenting plan in the decree. The Court of Appeals noted the legislature’s use of the word “shall” and recognized well-established case law that requires a permanent parenting plan. Thus, the appeals court held, it was erroneous for the lower court to modify the parenting plan at issue in an attempt to classify it as temporary.
Under Tennessee law, a parenting plan may be modified by showing a material change of circumstances affecting the best interest of the child. It is not necessary to show that there is a risk of harm to the child. Instead, a material change of circumstances can occur upon significant changes in the child’s needs, changes in a parent’s living or working conditions, or the failure to adhere to the existing parenting plan. The appeals court noted that the lower court had not considered the factors listed in the applicable Tennessee statute. As such, the Court of Appeals reversed the trial court’s judgment and remanded the case to be determined in accordance with the appropriate factors.
If you or someone you know has encountered challenges with respect to a parenting plan, parenting time, custody or visitation, contact the family law attorneys at Martin Heller Potempa & Sheppard. Our caring and compassionate legal team will listen to your concerns and stand up for your parental rights. For an initial consultation, contact us online or call (615) 800-7096.
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