13th Nov 2013

Many times divorcing parents have disagreements concerning what is the proper method of determining the number of days that the minor children spend with each parent for purposes of calculating child support? This may seem easy to count, but the calculation can become complicated when the minor children spend a portion of the same day with Mother and Father.

Oftentimes, one parent states that the other parent is not entitled to credit for a full “day” for any mid-week overnight visitation with the minor children, asserting that “a ‘day’ has been interpreted to mean a child spends the majority of a twenty-four (24) hour calendar day with or under the control of a parent and that parent expends resources on the child during this period.” This interpretation of the applicable law is incorrect.

Following the initial enactment of the income shares guidelines, there was confusion regarding what actually constituted a “day” for purposes of calculating child support. The Guidelines have since been revised and contain a specification for determining credit days spent with the children. Specifically, Rule 1240-4-.02 (10) of the Guidelines now defines what constitutes a “day” as follows:

“Days” – For purposes of this chapter, a “day” of parenting time occurs when the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent or caretaker. The twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day. Accordingly, a “day” of parenting time may encompass either an overnight period or a day-time period, or a combination thereof. reference 1240-4-.02 (10), Child Support Guidelines August, 2008 (Revised).

This is a change from the prior rule that had defined a “day” as the majority of a twenty-four (24) hour calendar day. The new definition, under the most recent version of the Guidelines, includes either a daytime period, or an overnight period.

In the Tennessee Court of Appeals case, Eaves v. Eaves, 2007 WL 4224715, the issue before the Court was the proper method of calculating partial days when the children spent a portion of certain days with each parent. The wife alleged that husband, who had parenting time every other weekend from Friday at 3:30 pm until the start of school on Monday morning, should only receive two days credit every other week for purposes of calculating child support. However, the Court held that Rule 1240-2-4-.02 (10) of the Guidelines provided the rule of decision for the issue and that wife’s interpretation of the rule was incorrect. The Court explained that under the rule, a period of time starting Friday at 3:30 pm and ending sometime Monday morning would be calculated as three days, due to the fact that it included three 24-hour periods during which the children spent more than half of the time with the Father. The Court went on to give an example, stating: “For instance, the children are with husband for 20.5 out of 24 hours between noon Friday and noon Saturday; for all 24 hours from noon Saturday until noon Sunday; and for another 20.5 out of 24 hours from noon Sunday until noon Monday.” The Court held that this method of calculating “days” is clearly permissible according to the plain language of Rule 240-2-4-.02 (10), which states explicitly that “[t]he twenty-four (24) hour period need not be the same as a twenty-four (24) hour calendar day.

The method set forth in Eaves, for determining a parent’s annual parenting time was later reaffirmed by the Tennessee Court of Appeals in Walls v. Walls, 2008 WL 4414710, and once again, more recently, in State of Tennessee, ex rel Flemming v. Elder, 2009 WL 1676010 (Tenn.Ct.App.).

In State of Tennessee, ex rel Flemming v. Elder, the Trial Court found that father visited the child at petitioner’s home for five to six hours every day after work. Based on this, the Trial Court found that father exercised thirty eight hours of visitation per week, which the Court translated into three blocks of twelve hours, thereby crediting father with three “days” of visitation per week, for a total 156 days annually. The Tennessee Appellate Court reversed, reaffirming its holding in Eaves v. Eaves. Once again, the Court emphasized that Rule 240-2-4-.02 (10) of the Tennessee Child Support Guidelines governed the issue and that a “day” of parenting time occurs when the child spends more than twelve (12) consecutive hours in a twenty-four (24) hour period under the care, control or direct supervision of one parent.

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