13 Jun 2012

TN Father’s Wednesday Overnight Parenting Time Continuation Affirmed

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Tennessee law case summary on parenting time modification in Tennessee divorce and family law from the Tennessee Court of Appeals. Tennessee Father’s Wednesday overnight parenting time continuation affirmed.

Clarence Andrew Elcan v. Amanda Hart Elcan

Clarence Andrew Elcan, father, and Amanda Hart Elcan were divorced in December of 2007, though no amount of time was listed for the marriage. The parenting plan put in place in the final divorce decree named the mother as the primary residential parent to three minor children and gave the father parenting time of 5 p.m. to 7 p.m. Wednesday evenings during the school year and every other weekend, with overnight visitations to the father during the summer and two uninterrupted summer weeks. It also gave the option to the father drive the children to school three mornings per week.

After the divorce, both parents filed petitions for criminal contempt against each other. In an appeal filed by the mother on May 29, 2009, the mother alleged the father returned the children late 14 times after his Wednesday parenting time. The father filed a petition on June 1, 2009 and requested to modify the visitation to provide for him to keep the children overnight on Wednesdays during the school year. 

The lower court modified the father’s visitation to include the overnight stay Wednesdays and required the father to bring the children to school on Thursday mornings. It removed his ability to take the children to school three times per week. The court also ruled that if this midweek overnight adversely affected the minor children, it would eliminate it. It also put in place a ruling that would not allow for members of the opposite sex to spend the night under inappropriate circumstances when the children were in that party’s possession.

The mother filed a petition in June of 2010 alleging the father shared his bed with a girlfriend on 17 occasions. She obtained a restraining order. Though numerous changes to the court order were conducted, it was determined that the initial orders were too vague and that the restraining order was without merit as there did not seem to be any harm to the children. It ruled the children were doing well, that no proof to the contrary was available, and that Wednesday overnight visitation was to continue.

The appeals court received a request by the mother to look at the case. The mother believed the trial court erred in January of 2010 by modifying the parenting plan to give the father overnight residential visitation during the week. She claimed it also erred in February of 2011 by failing to modify the plan to eliminate the overnight aspect of the residential time.

The appeals court took into consideration that the trial court considered extensive testimony that both parties agreed that the Wednesday evening visitation schedule originally put into place was not working. Being late created problems for the children’s nighttime schedule and caused problems the next day. The trial court’s solution of allowing the children to remain overnight at the father’s home was to in effect, not punish the children because of feeling rushed. The appeals court ruled that the decision by the lower court was to benefit the children not the father, as the mother believed.

The second issue was in maintaining the overnight visitations. The mother testified it was too hard to do. The appeals court ruled in favor of the father in that it could find no reason to reverse the trial court’s decision.

Court of Appeals of Tennessee at Nashville, Appeal from the Circuit Court for Davidson County, No. 07D1698, Joseph P. Binkley, Jr., Judge.

Disclaimer: See original opinion for exact language. Legal citations omitted.

Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, and alimony modification.

Miles Mason

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Memphis divorce and family lawyer, Miles Mason, Sr. is the founder of Miles Mason Family Law Group, PLC. For more information about our professional staff, see our Meet the Team page.

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