Tennessee Dad Gets Increased Parenting Time of Oldest Son

Tennessee law case summary on parenting time in family law from the Court of Appeals.

Daniel P. Rousos v. Kristi Boren (f/k/a Rousos) – Tennessee custody modification & expert testimony

Daniel Rousos and Kristi (Rousos) Boren were divorced in Williamson County, Tennessee, in 2009.  They had three sons, who were then 6, 8, and 11 years old.  They initially agreed to a parenting plan naming the mother the primary residential parent.  However, a year later, they agreed to and the court approved a plan giving them equal parenting time, alternating weekly.  The arrangement proved contentious.  They later agreed to a mutual restraining order allowing them to communicate only by e-mail or text message, and to stay at least ten feet apart when at the sons’ sports events.  In 2012, the father filed a petition asking to be named the primary residential parent of the oldest son.  He pointed to several changed circumstances since the last parenting order, including the son’s stated preference to live with the father.  The mother also filed a petition asking for a change in the custody arrangements.  Both parties also filed numerous contempt motions against the other parent, alleging numerous breaches of the restraining order.

A five-day trial was held at which the trial judge tried to sort out the conflicting stories.  Ultimately, the court named the father the primary residential parent of the oldest son, with equal parenting time for the younger sons.

The father was held in civil contempt for allegedly failing to pay certain uncovered medical expenses and failing to provide certain tax returns.  Dissatisfied with the outcome of the custody portion of the case, the mother appealed to the Tennessee Court of Appeals.  She alleged that the trial court gave too much weight to the testimony of the oldest son in naming the father the primary residential parent.  She also alleged that the trial court should have reduced the father’s parenting time.

The appeals court first noted that its first task was to determine whether there had been a material change of circumstances since the initial order.  If so, it looks to the best interest of the child in making the decision.  In this case, the court held that the factor that tipped the scale in favor of the father was the oldest son’s stated preference, and that since he was over 12 years old, this factor should be given great weight.

It also examined the lower court’s rulings on the other factors and concluded that the evidence supported those determinations as well.

The lower court had heard the testimony of Joseph LaBarbera, Ph.D., a psychologist who had been counseling the children.  The mother argued that the trial court gave too little weight to Dr. LaBarbera’s testimony.  He had testified that he believed the mother should be named the primary residential parent, but he put it in terms of making that recommendation “if” the court determined that the father wouldn’t change his behavior.

The appeals court noted that the lower court was not bound by the expert’s recommendation.  After examining all of the evidence, the appeals court found that the lower court had not erred in giving too much weight to the son’s stated preference.

The mother pointed out various negative behaviors by the father, and argued that these should have been given more weight by the lower court.  However, the appeals court pointed out that the decision should be based upon the child’s best interests.  Even though that behavior might be relevant, it was not necessarily the deciding factor.

The appeals court noted that the lower court had applied a clear and cogent explanation for the ruling.  The higher court agreed that the trial judge had given thorough consideration of the voluminous record in the case.  The appeals court did remand the case for a re-determination of attorney fees, and declined to award either party attorney fees on appeal.

No. M2013-01568-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2014).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans in Tennessee After Divorce.  See also Miles Mason’s book available on Amazon.com Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases.