Missing Plan Did Not Prevent Tenn. Mom From Having Custody Modified

Tennessee law case summary on parenting plan law in divorce and family law from the Court of Appeals.

Leslie Kay Johnson v. Darren Tracy Johnson  – Tennessee divorce permanent parenting plan.

When the mother and father divorced in 2010, the mother was designated the primary residential parent, and the permanent parenting plan called for both parents to have equal parenting time with the child.  The child was rotated between the parties throughout the week.

In 2012, the mother filed an emergency petition for custody and contempt.  She alleged that the child suffered from panic attacks related to visits with the father.  The trial court entered temporary orders suspending the father’s visitation pending a report from the child’s psychologist.

The psychologist reported that it was not in the child’s best interest to be exchanged multiple times per week, and found that there had been a change of circumstances and modified the parenting schedule.  Among other things, the trial court stated that alternating weeks in the summer was “something the parties should work toward.”

The father appealed to the Tennessee Court of Appeals.  He made two arguments.  First, he argued that the mother’s petition should have been dismissed since she did not include a proposed parenting plan along with the motion.  Second, he argued that establishing a new parenting schedule was error under the circumstances.

The Court of Appeals noted that they review such cases anew, but with a presumption of the correctness of the trial court’s findings.

On the issue of the parenting plan not being filed, the Court of Appeals did recognize that this is a jurisdictional requirement.  However, the court noted that the mother did file a proposed plan later, as did the father, and that the requirement was ultimately met by these plans.

Then, the father argued that the mother’s parenting plan was never properly before the court.  Since his was the only plan properly presented to the court, he argued that the trial court should have had no choice but to adopt his.  The Court of Appeals rejected this argument.  It pointed out that the trial court is always free to adopt a plan different from the ones presented by the parties, as long as it is in the child’s best interest.  While language in one earlier case suggested that this was not the case, the court pointed to another precedent allowing the court to adopt its own plan.

The court then examined the trial court’s parenting plan and concluded that the evidence did not preponderate against it.  Therefore, it affirmed the judgment of the trial court in its entirety.  It also assessed the costs of the appeal against the father.

No. E2012-02618-COA-R3-CV  (Tenn. Ct. App. Sept. 23, 2013).

See original opinion for exact language.  Legal citations omitted.

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