36-6-404 - Requirement of and procedure for determining permanent parenting plan. - Tennessee Statutes

36-6-404. Requirement of and procedure for determining permanent parenting plan.

(a)  Any final decree or decree of modification in an action for absolute divorce, legal separation, annulment, or separate maintenance involving a minor child shall incorporate a permanent parenting plan; provided, however, that this part shall be inapplicable to parties who were divorced prior to July 1, 1997, and thereafter return to court to enter an agreed order modifying terms of the previous court order. A permanent parenting plan shall:

     (1)  Provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the permanent parenting plan;

     (2)  Establish the authority and responsibilities of each parent with respect to the child, consistent with the criteria in this part;

     (3)  Minimize the child's exposure to harmful parental conflict;

     (4)  Provide for a process for dispute resolution, before court action, unless precluded or limited by § 36-6-406; provided, that state agency cases are excluded from the requirement of dispute resolution as to any child support issue involved. In the process for dispute resolution:

          (A)  Preference shall be given to carrying out the parenting plan;

          (B)  The parents shall use the designated process to resolve disputes relating to the implementation of the plan;

          (C)  A written record shall be prepared of any agreement reached in mediation, arbitration, or settlement conference and shall be provided to each party to be drafted into a consent order of modification;

          (D)  If the court finds that a parent willfully failed to appear at a scheduled dispute resolution process without good reason, the court may, upon motion, award attorney fees and financial sanctions to the prevailing parent;

          (E)  The provisions of this subsection (a) shall be set forth in the decree; and

          (F)  Nothing in this part shall preclude court action, if required to protect the welfare of the child or a party;

     (5)  Allocate decision-making authority to one (1) or both parties regarding the child's education, health care, extracurricular activities, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in this part. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child;

     (6)  Provide that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent;

     (7)  Provide that when mutual decision making is designated but cannot be achieved, the parties shall make a good-faith effort to resolve the issue through the appropriate dispute resolution process, subject to the exception set forth in subdivision (a)(4)(F);

     (8)  Require the obligor to report annually on a date certain to the obligee, and the department of human services or its contractor in Title IV-D cases, on a form provided by the court, the obligor's income as defined by the child support guidelines and related provisions contained in title 36, chapter 5; and

     (9)  Specify that if the driver license of a parent is currently expired, canceled, suspended or revoked or if the parent does not possess a valid driver license for any other reason, the parent shall make acceptable transportation arrangements as may be necessary to protect and ensure the health, safety and welfare of the child when such child is in the custody of such parent.

(b)  Any permanent parenting plan shall include a residential schedule as defined in § 36-6-402(3). The court shall make residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child's residential schedule shall be consistent with this part. If the limitations of § 36-6-406 are not dispositive of the child's residential schedule, the court shall consider the following factors:

     (1)  The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

     (2)  The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

     (3)  The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

     (4)  Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in these proceedings;

     (5)  The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

     (6)  The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

     (7)  The love, affection, and emotional ties existing between each parent and the child;

     (8)  The emotional needs and developmental level of the child;

     (9)  The character and physical and emotional fitness of each parent as it relates to each parent's ability to parent or the welfare of the child;

     (10)  The child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;

     (11)  The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

     (12)  Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

     (13)  The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child;

     (14)  The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

     (15)  Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and

     (16)  Any other factors deemed relevant by the court.

(c)  The court shall approve a permanent parenting plan as follows:

     (1)  Upon agreement of the parties:

          (A)  With the entry of a final decree or judgment; or

          (B)  With a consent order to modify a final decree or judgment involving a minor child;

     (2)  If the parties cannot reach agreement on a permanent parenting plan, upon the motion of either party, or upon its own motion, the court may order appropriate dispute resolution proceedings pursuant to Rule 31 of the Rules of the Supreme Court, to determine a permanent parenting plan; or

     (3)  If the parties have not reached agreement on a permanent parenting plan on or before forty-five (45) days before the date set for trial, each party shall file and serve a proposed permanent parenting plan, even though the parties may continue to mediate or negotiate. Failure to comply by a party may result in the court's adoption of the plan filed by the opposing party if the court finds such plan to be in the best interests of the child. In determining whether the proposed plan is in the best interests of the child, the court may consider the allocation of residential time and support obligations contained in the child support guidelines and related provisions contained in chapter 5 of this title. Each parent submitting a proposed permanent parenting plan shall attach a verified statement of income pursuant to the child support guidelines and related provisions contained in title 36, chapter 5, and a verified statement that the plan is proposed in good faith and is in the best interest of the child.

(d)  The administrative office of the courts shall develop a “parenting plan” form that shall be used consistently by each court within the state that approves parenting plans pursuant to § 36-6-403 or 36-6-404 on and after July 1, 2005. The administrative office of the courts shall be responsible for distributing such form for the use of those courts no later than June 1, 2005. The administrative office of the courts shall be responsible for updating such form as it deems necessary, in consultation with the Tennessee family law commission, the domestic relations committee of the Tennessee judicial conference, and other knowledgeable persons.

[Acts 1997, ch. 557, § 1; T.C.A., § 36-6-410; Acts 2000, ch. 889, § 1; 2002, ch. 677, § 1; 2003, ch. 243, § 1; 2004, ch. 864, § 1; 2005, ch. 127, § 1.]