In Oliver Tennessee appeals judge Koch upheld an outrageous trial court ruling on parental alienation by Davidson County judge Muriel Robinson.  This included the mother interfering with the father’s visitation, denying mid-week visitations, delivering the child late and picking her up early, refusing to provide information regarding when to pick up the child, refusing to allow phone access, repeatedly making derogatory comments about the father in the child’s presence, failing to offer the opportunity to babysit the child, and finally changing the child's schools so dad would have a harder time having lunch with his daughter.  That covers just about every way to destroy a parent-child relationship, and judge Robinson sentenced the mom to 130 days in jail, then suspended all of it!  The mother deserved heavy punishment and got none.  In this ruling the Tennessee judiciary gave the green light for custodial parents to cut off the child from the other parent, showing judges are openly opposed to the best interest of children. 

Koch added in the ruling, "[T]he rights, desires, and interests of Dr. Oliver become secondary to the best interests of the parties’ child."  A parent's desires and interests are inseparably intertwined with his or her child's best interests, and are not secondary.  What Koch is really saying is the judiciary is carving out a section of law where constitutional law no longer applies, so judges can impose their interests over and above those of parents, even when judicial interests are directly against the best interest of children.  Keeping a child from his or her parent is harm to the level of child abuse, and Tennessee trial and appeals court have become open participants in child abuse.  Koch was considered the Tennessee appeal judge with the most integrity, and apparently he has sold his soul to try to get promoted to a higher position.  

Landmark Ruling      William Koch

Current parental custody cases virtually always result in the creation of two classes of citizens, one called custodial, and the other non-custodial.  These are radically unequal, and competition to be in the superior class causes conflict between moms and dads, at times severely and until the child turns 18.  Tennessee judge Muriel Robinson in the case Swett v. Swett applied the innovative solution of ordering both parents to be custodial, in an equal and alternating schedule.  June 27, 2002 a Tennessee appellate court issued an opinion addressing this practice.  Justice Koch  was the author, and it was unanimously upheld both parents would be custodians. 

This overturns the "King Solomon Doctrine" which harks back to the beginnings of recorded history, that custody disagreements result in one caregiver.  That was true only before advancements such as jet planes, cell phones, and DNA testing.  Today we can identify without any doubt who the parents are, and no matter where they live they can parent their child.   Also cases defining fundamental parental rights such as Tennessee's Hawk v. Hawk (1993), Stillwell v. Stillwell (2001), Ray v. Ray (2001), the U.S. Supreme Court's Troxel v. Granville (2000), Georgia's DHR v. Sweat (2002), and Connecticut's Roth v. Weston (2002), have been released.  They indicate the obvious, that constitutional guarantees apply to parents and children in all circumstances and at all times.  Note the increasing frequency of significant constitutional rulings, and the largest number are from Tennessee courts.

Justices Koch, Cantrell, and Cain in Swett recognized joint custody only works for cooperative parents (which disqualifies most in non-intact families).  "In light of the overwhelming evidence of the vitriolic relationship between the Swetts, it must have been apparent to the trial court that forcing them to collaborate in a joint custody arrangement would have little chance of long-term success.  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."

They then explained the trial judge's solution.  "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.", and "As we understand the custody arrangement in this case, Mr. Swett and Ms. Swett effectively have sole custody while the child is residing with them."

And the circumstances where this would be appropriate, "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."  An additional one might be added, (8) any other factor that places the child in substantial harm.

The last chapter in the book of parental rights will be a ruling applying strict scrutiny, and affirming the above numbered items (or similar) result in both parents sharing custody. 

************************* Notes *************************

A handful of divided (alternating) custody rulings preceded Swett v. Swett, and prior to its issuance this arrangement for practical purposes did not exist.  The environment for those tiny number of earlier cases significantly differs from today in the technological leaps which enable shared parenting to occur on a much larger scale, and the very recent constitutional opinions indicating it cannot be denied a parent and child unless the child is in substantial harm.  Swett is the opinion indicating sea change is at hand.

Also differing from when the previous cases were decided is the strong societal belief that a child should be raised by both parents.  This is shown by the many studies, articles, and books on the subject, and legislative activity such as Rep. Kathryn Bowers' HB2338.  During testimony for that bill she made the historic statement, "I understand what you are saying, and that is true what we have now, but we do not have situations where we have alternating primary residential custody.  We have joint custody with one custodial parent, and one non-custodial parent, what this bill does is say in essence, that you actually have two custodial parents, at different times."  March 19, 2002, Rep. Bowers was the first legislator in the nation, and possibly history, to argue for true equality between moms and dads in parenting. 

Under Judge Robinson's ruling Dad has custody the first 6 months of the year, and then Mom the next 6.  Legal practitioners should take care to not artificially limit themselves to equal divisions within a one-year time span.  Equality only need occur from when the court assumes jurisdiction, until the child reaches majority.  Thus custody switches can happen in 1, 2, or 4 year blocks, or once prior to the child reaching age 18.  This allows flexibility to tailor the orders to any circumstance, including if parents live far apart.  Also notably the schedule need not be linear, only equal.  Hence the mother could be custodian more when the child was very young, and the father later when the child was older.  This needs to be explored by social scientists.

There are two schedules with alternating custody, the switches, and the parenting time for the non-custodial parent (ncp).  Parenting time is expected to be mutually agreed upon without difficulty, because when custody reverses, the new ncp will receive a mirror image of the previous ncp's schedule.  This creates the circumstance where there is no incentive to minimize ncp-child contact as under today's practices, but conversely an incentive to maximize it.  Age appropriate parenting time guidelines also need to be developed by social scientists.