Facts: Husband and Wife were married 17 years. They have two children. Wife filed for divorce and alleged that Husband regularly viewed pornographic web sites, had various meetings with people he met on adult dating sites, and had an affair. Husband did not dispute these claims. Prior to the separation, Wife was the primary caregiver for the children. Husband became more involved in caring for the children after the separation. During the separation, Wife expressed her desire to relocate to a city approximately five hours away if the court would allow the children to move. Husband opposed the relocation. After a trial, the trial court designated Husband as the primary residential parent with equal parenting time of alternating weeks. Wife appealed.
On Appeal: The Court of Appeals reversed the trial court.
Wife argued that the trial court’s ruling was based on a misdirected focus on whether she could relocate. The Court observed:

It is true that Wife expressed a desire to move to Clarksville, but it is also apparent that Wife did not take the position at trial that moving to Clarksville was an all or nothing proposition. She made it clear that she would only move to Clarksville if she could do so with the children. She presented two alternative parenting plans for the court to consider — one in case the court agreed she could move the children to Clarksville and one in case the court decided they should stay in Morristown. The case was tried and argued as one with three possible outcomes, i.e., (1) the children reside with Husband in Morristown; (2) the children reside with Wife in Morristown; or (3) the children reside with Wife in Clarksville. Thus, while there is no reason to question the trial court’s determination that it is in the best interest of the children to stay in Morristown, this does not automatically mean that Husband should be the primary residential parent.

As usual, the determination of who had been the primary caregiver for the children took center stage, along with who was best positioned to be the primary caregiver in the future.

The trial court recognized Wife’s historical role as the primary caregiver, but concluded that the weight of that factor was offset by Husband’s role as provider. Given that Husband had little activity as a caregiver before the separation and the further fact that Wife also worked and contributed financially throughout the marriage, we believe the trial court erred in not assigning significant weight to Wife’s role as primary caregiver. Furthermore, it is clear that Husband’s “employment schedule” prevents him from taking the children to school or picking them up from school. Wife’s employment schedule has historically been subservient to the needs of the children. The trial court’s award of primary residential parent status to Husband, with an equal and inflexible parenting schedule, has the undesirable effect of making the grandfather a de facto parent for several hours every other week when Wife is available to care for them and is asking to be allowed to fill that role.

The Court also emphasized Husband’s “marital fault,” although the opinion makes no reference to any direct impact on the children.

We have reviewed the transcript of Husband’s testimony and find that the evidence preponderates strongly in favor of finding that Husband had an uncontrolled problem with internet pornography and with extramarital relationships initiated through the internet, all of which he tried to falsely deny or portray as innocent. We have repeatedly held that a spouse’s wrongdoing and denial of wrongdoing can reflect on the comparative fitness of that party as a parent. Such activity relates to the “parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult” as well as the parent’s “character” as it relates to child-rearing.

The Court held the trial court had abused its discretion in naming Husband the primary residential parent and in establishing a parenting schedule of alternating weeks. The Court of Appeals reversed the trial court by naming Wife the primary residential parent, giving Wife final decision-making authority, and establishing Husband’s parenting time to be three out of every four weekends. The case was remanded to the trial court to set child support.
K.B.J. v. T.J. (Tennessee Court of Appeals, Eastern Section, August 26, 2011).
Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.