Gaby v. Gaby (Tenn. Ct. App. 2022)(filed 11/17/2022) was a post-divorce case for modification of the residential schedule of the parties’ permanent parenting plan of their two teenage daughters, born 2004 and 2007. When the parties were divorced in 2017, the Father’s timesharing was restricted to 52 days per year because of a lack of emotional attachment to the children, anger control issues, and his unusual work schedule. A year later, 2018, the Father petitioned the court to modify the residential schedule to 50-50 timesharing.
By the time the case went to trial in 2019, the oldest daughter refused to cooperate with the timesharing schedule because she felt he treated the younger daughter with favoritism, and that he made her feel guilty instead of trying to work on their relationship. The Father blamed the Mother for not encouraging the parent-child relationship. The youngest daughter did enjoy spending time with the Father, but she felt conflicted about how the Father treated her sister and her sister’s reluctance to visit; she felt “caught in the middle.”
Modification of the residential schedule required the Father to prove that there was a “material change of circumstances”. At the conclusion of the trial, the trial judge found that the Father did prove a material change: the Father changed his work schedule to spend more time with the children; and he utilized the services of a therapist to work with him and the children to introduce his new girlfriend to them; and he attended extracurricular activities.
The trial judge modified the Father’s time from 52 days a year to 90 days.
Appeal #1: The Father appealed because he wanted 50-50. The appeals court found that the trial judge did not make sufficient findings, so the case went back to the trial judge to make detailed findings in accord with the best interest factors, and with any new evidence since the time of the trial.
The remand hearing was held in January 2022. The trial court again awarded the Father only 90 days, citing the older daughter’s issues with the Father, and the youngest daughter's conflicted feelings about how the Father treated her sister and that her sister was reluctant to visit with the Father.
Appeal #2: The Father appealed again because he still wanted 50-50. The appellate court found that the trial judge placed too much emphasis on the youngest daughter’s feelings about her sister. So, the appellate court “once again” remanded the case, telling the trial judge to “solely consider the best interest” of the youngest daughter.
Furthermore, the appellate court “encouraged the parties to work together with the trial court to fashion a residential schedule that is in the minor child’s best interests and that maximizes each parent’s participation in her life for the remainder of her adolescence.”
Yes, that's right, after years of litigation and 2 appeals, no resolution.
Some nuggets of wisdom from the Gaby case for you:
1. If you are going to trial, make sure that the judge has detailed the facts as applied to the best interest factors, or else, you will be wasting a lot of your time and your money on attorneys. Parental conflict is not healthy for children.
2. This case sets a precedent that to modify a residential schedule, a parent can change his or her work schedule to make time for the children; get some family therapy; and become involved with the children.
3. The Appellate Court sent a signal that they do not think that judges should be resolving your parenting issues with your teenagers. So, work together or work together with a mediator to address your children’s issues and don’t let a stranger in a black robe determine what is best for your children. The parents are in the best position to determine that. Also, save your children’s college money by not paying a good chunk of your hard-earned money to lawyers. From August 2018 through August 2022, these parents paid attorneys to litigate and appeal the case two times, and still this family had no resolution for their legal issues.
Comments