Facts:  Parties, parents of two children, filed for divorce after 15 years of marriage.  Wife is an elementary school teacher who was found by the trial court to have engaged in extramarital affairs she had denied.  Husband works from 6:00 a.m. to 4:00 p.m., which means he will have to rely upon his parents, who live nearby, to help prepare the children for school and to care for them when school is out.  Further, Husband cannot cook and has never prepared a full meal for the children.  While both parents were found to be fit, the trial court was troubled that Wife had “placed her relationship with these men over the children by leaving them and going out at night and leaving them with their father . . . .”  The trial court named Husband the primary residential parent and set Wife’s co-parenting time for every other weekend and one night each week.  Wife appealed.

The Court of Appeals reversed the trial court.

The central concern in any custody and visitation ruling is the best interest of the children. The interest of the parents are secondary. “Custodial arrangements should not be made with the goal of punishing a parent for misconduct. Nonetheless, misconduct of a party does often reflect fitness of the parent for custody and is a proper consideration. . . .”

We agree with Wife that her scheduled parenting time make little sense under the circumstances of this case. There is no finding that she is an unfit mother. There is no finding that her affairs, or her distractions with men other than her Husband, have caused an adverse impact on the children. The parenting plan essentially makes Husband’s parents the de facto parents of the children through the week and the summer months. There is no dispute that Husband has historically had limited involvement in seeing to many of the day-to-day needs of the parties’ young children. There is no dispute that, under the parenting plan, Husband’s work schedule means someone other than a parent must wake the young children, see that they are fed and dressed, and see them off to school. Since Husband cannot cook, other than a snack, he must rely on his parents and others to cook for the children. This is all being done by a non-parent when the Wife, whom the trial court found has been more disposed to render such care to the children in the past, is available and asking for more time with her children.

The compelling statutory factor that the parenting schedule ignores, despite the trial court’s acknowledgment of the parties’ respective schedules, is that Wife’s schedule is much more conducive to liberal time with and care of the children during the school week, whereas Husband’s work schedule makes it impossible for him to personally spend time with and care for the children on school mornings . Further, during the summer, Wife is off the same time as the children, and Husband must continue his 6:00 a.m. to 4:00 p.m. shift work. Therefore, we find that the parenting schedule constitutes an abuse of discretion. . . .

We have considered the factors with particular attention to the schedule of the parents and conclude that the parenting schedule must be modified to take into consideration the respective work schedules. We conclude that the bulk of the parenting time through the week should be shifted to Wife, and the bulk of the parenting time on the weekends should be shifted to Husband. We also believe that considerably more parenting time through the summer and any appreciable breaks in the school year should be with Wife. It is in the best interest of the children that this time should be with Wife rather than Husband’s parents.

This result is consistent with other cases holding that it is generally in a child’s best interest to spend time with a parent as opposed to a third party.

Miller v. Miller (Tennessee Court of Appeals, Sept. 28, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.