TN Governor Signs Bill Requiring ‘Maximum Participation Possible’ for Both Parents in Custody Cases

Across the country, family law is in a state of flux.  The demands of fathers’ rights advocates, the demands of common sense, decency and fairness, together with the overwhelming weight of social science are all gradually forcing a shift in how custody cases are decided.  It’s a slow process – infuriatingly so – but fathers now have greater respect in custody decisions than ever before and it’s only going to get more so.

Here’s a small part of that process.  The governor of Tennessee just signed a bill into law that would require judges to

order custody arrangements that permit both parents to enjoy the “maximum participation possible’ in the life of the child consistent with the location of the parents” residences, the child”s need for stability, and other statutorily enumerated factors.

Now, there are a number of weasel words in there as all can see.  Any judge with half a mind to keep fathers and children separate won’t be deterred by the “maximum participation possible” language.  After all, that participation need only be only “consistent” with numerous other factors.  Here they are:

These other 10 factors under the current version of the custody statute are to be considered “where applicable’ and include the love, affection and emotional ties existing between each parent and the child, the relative disposition of each parent to provide for the child”s necessities and the degree to which he or she has been the primary caregiver, the importance of continuity in the child”s life, the stability of each parent”s family unit, the health of each parent, the home, school and community record of the child, the reasonable preference of the child if 12 or older, evidence of any abuse to the child, to the other parent, or to any other person, the character and behavior of any other person who resides with each parent or who frequents his or her home, and each parent”s past and potential for future performance of parenting responsibilities.

So the new “maximum participation possible” language by itself won’t usher in a brave new world of father-child relationships post-divorce.  There are simply too many ‘outs’ for the judge who’s inclined toward maternal custody.

But of course not all judges are, and they’ll have something on which to hang their hats when awarding greater paternal custody.  After all, it’s pretty clear that the intent of the legislature in passing the act and the governor in signing it is to maximize the time each parent spends with the child given all the other considerations.  It’s also clear that the legislature considers spending maximum possible time with each parent to be in the best interests of the child.

That’s certainly the opinion of family attorney Marlene Eskind Moses here (The Tennesseean, 5/31/11).

The new requirement will alter the way that custody cases are tried and parenting agreements are reached. It is possible and foreseeable that the new standard could lead some judges to increase parenting time for alternate residential parents and could even lead to the equal division of parenting time between parents more often than currently occurs.

Two years from now I’d be interested in seeing if the law has had the effect Moses thinks it will.

Meanwhile, here’s an article by Tennessee State Senator Andy Berke, who sponsored the bill just signed into law by the governor (The Tennesseean, 5/31/11).  He explains why he sponsored the bill and what it seeks to achieve.

In addition to changes in the family unit, parents” responsibilities have evolved. We no longer expect mothers to shoulder the lion”s share of day-to-day chores in raising a child. Many fathers spend as much or more time with their children as the moms. Our laws have struggled to keep up with these changes. Society moves faster than the legislature, and we have been caught behind the times.

I’ve said the same thing more times than I can count.  Recently, so did Dr. William Fabricius of Arizona State University.  The times are changing; fathers are taking a more active role in childcare and mothers are working outside the home more than ever before.  But legislatures don’t seem to notice.  Well, now the Tennessee legislature has.

As Berke makes clear, this new law may result in equal parenting, but it may not depending on the circumstances, but the lodestar of Tennessee custody law is now “maximum participation possible.”  Those are the words to which judges who honor the spirit of the law will return again and again in issuing custody orders.  They will also guide attorneys in advising their clients.

This law is no presumption of equally shared parenting.  Far from it.  It’s entirely possible that it will have no effect whatsoever on judicial practice in Tennessee.  It’s also possible that it will move custody decisions toward where they should have been for decades – equal or near-equal parenting time for Dad and Mom.

In the process, it’s worth noting that this law continues a trend away from parental rights and toward the concept of parental responsibilities.  That may well be the future of child custody law as many attorneys and social scientists have argued. 

It’s important to remember, however, that the language of parental responsibilities applies only when parenting time is allocated post divorce.  We should not lose sight of the fact that parental rights are still vital to the concept of parenting vis-a-vis governmental power.  When CPS comes for a child, we can’t get caught in the language of parental responsibilities and forget that, as to the government, parents do have rights.

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