COURT OF APPEALS OF TENNESSEE
DAVID SWETT, SR. v. GRACE Z. ALEMAN SWETT
No. M1998-00961-COA-R3-CV - Filed June 27, 2002

The crux of the opinion:

'Joint custody is most appropriate when the joint decision-makers are predisposed to, or at least capable of, amicably resolving potential disagreements over raising their child or children.

The chances that joint custody will succeed improve when the parents have some pre-existing relationship and a proven track record of effectively sharing parental obligations and responsibilities.

The chance of success diminishes when the parents have turned child raising into a battleground. Accordingly, the courts have been forced to recognize that, as a practical matter, a joint custody arrangement requires a level of cooperation that not all parents can provide.

The courts have frequently been called upon to rework joint custody arrangements that have failed despite the parents' best intentions. Joint custody is no longer in a child's best interests when the parents are no longer able to cooperate.

Accordingly, notwithstanding the parents' initial agreement to a joint custody arrangement, the inability of parents to cooperate with regard to their children constitutes a significant enough change in the child's circumstances to trigger a reconsideration of the existing custody arrangement.

[...]  A typical joint custody arrangement could, in fact, not have been in their son's best interests because it could have undermined the psychological well-being of his parents and could also have exposed him to high levels of parental conflict. The trial court must have sensed these problems because the custody arrangement it devised, while called "joint custody," bears few similarities with the concept of joint custody as it is customarily understood.

The trial court's order minimizes the need for the Swetts to collaborate to make major decisions regarding their child. It divides physical custody between the parents. Mr. Swett has custody of the boy for the first six months of the year, and Ms. Swett has custody for the second six months. During the time that each parent has physical custody, the order gives the parent "final decision-making authority regarding the child," except for educational and, perhaps, medical matters.

[...]  The divided custody arrangement devised by the trial court does not completely eliminate the potential for disputes or disagreements between the parents. However, in most matters, it avoids requiring the parents to be joint decision-makers. It does not, as we see it, require a level of cooperation between the Swetts that they are unable to provide. Accordingly, we have no basis to unravel the trial court's custody arrangement in this case simply because the trial court called it "joint" custody.

[Citations above omitted; see full ruling hyperlink below.]

[...]   As a general matter, the court has let stand divided custody arrangements involving young children, even in the absence of parental agreement, where there is no  evidence that dividing custody will be unduly disruptive for the child. Garner v. Garner, 773 S.W.2d at 246.

The propriety of a divided custody arrangement should be analyzed by focusing on the effect it will have on the child. The analysis should proceed from the recognition that children thrive in stable environments, Aaby v. Strange, 924 S.W.2d at 627; Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 511451, at *4-5 (Tenn. Ct. App. July 21, 1999) (No Tenn. R. App. P. 11 application filed); National Interdisciplinary Colloquium on Child Custody, Legal and Mental Health Perspectives on Child Custody Law:  A Deskbook for Judges § 5:1, at 51 (1998), and, therefore, that stability and continuity of placement are important considerations in custody cases. Taylor v. Taylor, 849 S.W.2d at 328; Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991).

Thus, the factors that should be considered whenever a divided custody arrangement is contemplated include:

(1) the duration of each parent's physical custody and the frequency of the required changes in the child's residence,

(2) the effect of the arrangement on the child's relationship with his or her parents and other family members,

(3) the effect of the arrangement on the child's education,

(4) the effect of the arrangement on the child's religious upbringing,

(5) the effect of the arrangement on the child's social relationships,

(6) the effect of the arrangement on the continuity of the child's medical and dental care, and in appropriate circumstances,

(7) the child's preference.

[T]he trial court should revisit the issue of divided custody should the boy state unequivocally that he desires to stop alternating his living arrangements.'

-WILLIAM C. KOCH, JR., JUDGE

Swett v. Swett (PDF- Size 58k)