Facts: After eight years of marriage that resulted in the birth of one child, the parties divorced.

At trial, Mother testified to numerous incidents of domestic violence by Father. In one incident, Mother testified that Father slammed a shower door so hard the glass shattered and cut her legs. Father admitted to breaking the shower door, but claimed it was an accident. Father admitted to another incident in which he punched a hole in the wall in front of the minor child, broke a kitchen chair in anger, broke a wedding picture in anger, and threw a kitchen faucet at Mother in front of the minor child.

The trial court found that the majority of the factors under Tennessee Code Annotated § 36-6-106 weighed in favor of both parties equally, but found that because the court awarded Father the marital residence, this factor weighed in favor of Father so the child could have stability. The trial court did not make any credibility findings and it did not address the evidence presented by the witnesses concerning Father’s physical and emotional abuse of Mother.

Based upon the above findings, the trial court designated Father as the primary residential parent of the minor child, awarded Mother parenting time every other weekend and every Wednesday overnight for a total of 132 days a year, with Father receiving 233 days a year. Although the trial court did not address the evidence presented regarding Father’s physical and emotional abuse, the trial court ordered Father to complete an anger management course within six months.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Mother argued the trial court failed to consider the evidence of abuse in the record, including admitted incidents by Father, in designating Father as the primary residential parent and adopting a parenting plan giving Father significantly more parenting time than Mother. Mother further argued that the trial court failed to follow the statutory mandate contained in Tennessee Code Annotated § 36-6-406, which provides that:

(a) The permanent parenting plan and the mechanism for approval of the permanent parenting plan shall not utilize dispute resolution, and a parent’s residential time as provided in the permanent parenting plan or temporary parenting plan shall be limited if it is determined by the court, based upon a prior order or other reliable evidence, that a parent has engaged in any of the following conduct:
(1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting responsibilities; or
(2) Physical or sexual abuse or a pattern of emotional abuse of the parent, child or of another person living with that child as defined in § 36-3-601.

Under either Tennessee Code Annotated §§ 36-6-106 or 36-4-404, the trial court is required to consider evidence of physical or emotional abuse against the other parent in determining the custody and parenting schedule of the minor child. In Tennessee Code Annotated § 36-3-601(1), “abuse” is defined as “inflicting, or attempting to inflict, physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party.”

After reviewing the record, the Court found:

There were many instances that could be characterized as abuse that Father admitted to during his testimony at the trial….

[W]e . . . concluded that the evidence concerning Father’s abuse weighs heavily in favor of Mother being designated as the primary residential parent….

For the foregoing reasons, we reverse the designation of Father as the primary residential parent and remand with instructions to designate Mother as the primary residential parent. Further, on remand, in light of the evidence concerning Father’s abuse, the trial court should consider Tennessee Code Annotated § 36-6-406 and all relevant factors in adopting the appropriate parenting plan and setting Father’s parenting time.

K.O.’s Comment: Tennessee Code Annotated § 36-6-406(a) mandates that a parent’s parenting time shall be limited if the parent is found to have engaged in abuse. Here, the trial court made that implicit finding when it ordered Father to complete anger management counseling. Designating Father as the primary residential parent, however, was inconsistent with the statutory mandate.

Jacobsen v. Jacobsen (Tennessee Court of Appeals, Middle Section, April 5, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.