TBA Law Blog

Posted by: Kenneth Jackson on Apr 2, 2009

Journal Issue Date: Apr 2008

Journal Name: April 2008 - Vol. 44, No. 4

By William Bernet M. D. and Hon. Don R. Ash | Kriegr Publishing Company | $31.50 | 196 pages | 2007

The second edition of Dr. William Bernet's admirable first edition in 1995 has been solidified as a predivorce must-read. It is not only for the parents considering divorce, but now also for the attorneys, therapist and counselors advising them, and the judges ruling on their cases, by the legal and forensic contributions of his coauthor of the second edition, Judge Don Ash of Murfreesboro. Very simply, it is the most comprehensive and useful book of its type currently available. Attorneys and family mediators should provide divorcing parties with a copy, boosting their retainer by $31.50 to cover the cost.1 Further, they, judges, social workers, religious leaders, friends and relations can gain new insights into the injurious effects of fighting between parents (in and out of the legal system); the overriding importance of cooperation between divorcing parents; and the instabilities divorce introduces into the lives of children.

Resisting formulaic pronouncements, the authors recognize that different-from-the-norm arrangements in Parenting Plans may be appropriate in particular cases. There is a chapter on common parenting arrangements and another on uncommon ones, such as split custody and shared custody.2 The authors do recognize the importance of flexibility and change in Parenting Plans as the children age and their (and their parents') circumstances change. While there are occasional doctrinaire pronouncements of "general principles" in the text, the principal thrust of the authors is to offer common-sense suggestions to parents and their advisers from predivorce through divorce to "moving on." The key chapters are those on Parenting Plans, balancing the needs of parents and children, living in two homes, and making parenting time work. They recognize both the generally accepted principles " maximizing a child's stability, promoting a relationship with each parent, and the harmful nature of ongoing conflict " and the practical realities parents and children face in trying to make the most of a tough situation. They make the excellent point that a Parenting Plan should be derived primarily from the needs of the children. Other useful chapters are devoted to stepfamilies, grandparents, schools and teachers, mental health professionals, mediators and counselors.

Another strength of this book is that nothing is sugar-coated. The authors even notice the tendency of the parents' friends and relatives to exacerbate the conflict between them without regard to the effects on the children. Attorneys and mediators have seen the effects of usually well-intentioned bad advice from "friends" and relatives much too often.

The authors usefully analyze the elements judges consider under Tenn. Code Ann.  § 36-6-404 and the kinds of proof attorneys should offer on each of the elements. There are useful references to studies of children of divorce, leading cases, and other bibliographic resources throughout the book and in chapter 20.

The authors recognize that "the most difficult time for young (and I would argue any age) children is the transition from one household to another," and have some useful suggestions for the parents. Dr. Evon Flesberg's book, The Switching Hour: Kids of Divorce Say Goodbye Again (Nashville: Abingdon Press, 2008), specifically addresses this problem of a divided life. It is another "must read" for those who care for the now and future welfare of our children.

Attorneys, mediators and judges have much to learn about how to achieve "the best interests of the child." Dr. Bernet and Judge Ash have provided us with a reliable road map to guide us in realizing that goal.


1. Amazon price, October 2007.

2. The "custody" and "visitation" terms seem inescapable in a book intended for national distribution, and our Tennessee terms, "primary residential parent" and "non-primary residential parent," are unwieldy.

Ken Jackson is an attorney, arbitrator, and civil and family mediator, affiliated with the Mediation Group of Tennessee. He is a recent master of divinity graduate of Vanderbilt Divinity School, and served as the research assistant on Professor Flesberg’s The Switching Hour: Kids of Divorce Say Goodbye Again referred to above.