Facts: Father lived in New Jersey and Mother in Tennessee. After a brief long-distance relationship, Mother became pregnant. They married. After eight weeks of discord, they separated. Thereafter, Father remained a resident of New Jersey and Mother lived in Tennessee. Nearly a year later, when Child was six months old, Mother filed for divorce.

The Court explains several relevant occurrences in great detail. To keep this blog post manageable for the reader, I will briefly mention only a representative handful.

• The proof showed that Mother had at least five extramarital sexual relationships during this brief marriage, some of which took place while Child was in the home. During her brief live-in relationship with a married man, Mother had his name tattooed on her “pubic bone” and texted a photo to Father. This was not an isolated incident for Mother. The record contains approximately a dozen very explicit photographs of Mother, either alone or with a pregnant friend, naked in a variety of sexual poses. Mother texted the photos to Father and other men.
• Father recorded an “expletive-laced [telephone] conversation” where Mother was driving with Child in the back seat and “shrieking” at Father while he pleaded with her to put her seatbelt on and stop speeding.
• Father came to Tennessee for five days to visit Child. Mother allowed him to see Child for only one hour during his five days in Tennessee.
• Shortly after filing for divorce, Mother brought Child to New Jersey without advance notice to Father. Mother arrived at the home where Father was and began pounding on the door, shouting expletives and demanding that someone open the door. In view of Mother’s behavior, Father and his family did not open the door, and instead called the police. When the police officers arrived, they observed Mother “banging and kicking the back door” and “yelling and cursing for someone to open the door.” When Father came outside, he saw Child in the back of Mother’s car. He took Child out of the car and brought her into the house. Father refused to return Child to Mother that evening. Mother was not taken into police custody, but she agreed to allow Child to stay overnight with Father. The next day, Father still refused to return Child to Mother. The day after that, Mother filed a motion with the Tennessee trial court, asking the trial court to issue an order requiring Father to return Child to her. At the same time, Mother filed a petition in a New Jersey state court, asking for the same relief. The New Jersey court ordered Father to return Child to Mother.

Mother argued that she should be awarded custody of Child because she had been the caregiver all of Child’s life.

Father countered that Child would be more stable and much safer with Father as the primary residential parent.

The trial court, without explanation or factual findings, held that Mother would be declared the primary residential parent. Father was awarded parenting time during the third week of each month, presumably in New Jersey. Father appealed.

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

In making decisions regarding the proper parenting arrangement for a child, the child’s best interest is the paramount consideration.

In order to devise an initial parenting arrangement that is in the best interest of a child who is the subject of litigation, the trial court must engage in a “comparative fitness” analysis to determine which of the available custodians is comparatively more fit to care for the child. Fitness for custodial responsibilities is largely a comparative matter. No human being is deemed perfect, hence no human can be deemed a perfectly fit custodian. Necessarily, therefore, the courts must determine which of two or more available custodians is more or less fit than others.

There are literally thousands of things that must be taken into consideration in making a comparative fitness determination. To guide the courts in this analysis, Tennessee Code Annotated § 36-6-404(b) sets forth factors to be considered in designing or approving a parenting plan as a part of divorce proceedings. In addition, Tennessee Code Annotated § 36-6-106 provides that, in a divorce case “or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child.” To a large extent, the factors listed in Section 36-6-404(b) and Section 36-6-106(a) are the same. There is little substantive difference between the factors in the two statutes as far as determining comparative fitness and the best interests of the child.

After reviewing the proof at trial, the Court concluded:

[T]he undisputed evidence shows that Mother consistently exercised poor judgment and is less likely than Father to provide the child with a safe, secure, and stable home….

Mother’s sexual partners and proclivities figured prominently in the evidence presented to the trial court below. By the time of trial, Mother could “see that there’s a problem with” the graphic “sext” photos sent to Father and other men, but it is disturbing that it took child custody litigation for Mother to realize it….

When this record is considered as a whole, the evidence clearly preponderates in favor of a factual finding that Father is the more comparatively fit parent for [Child], and that [Child’s] best interests are served by designating Father as the child’s primary residential parent. The trial court’s custody decision “must be based on proof and applicable principle of law.” In light of our holding on the preponderance of the evidence in this record, we must respectfully conclude that the trial court abused its discretion in designating Mother as the primary residential parent of [Child], and we reverse its decision on this basis.

Accordingly, Father was awarded custody of Child. The case was remanded to the trial court for the entry of an appropriate parenting plan.

K.O.’s Comment: I am troubled by the Court’s finding that the “problem” of Mother having sent “graphic ‘sext’ photos” to men was relevant to the Court’s assessment of Mother’s “character” as it relates to her ability to parent. The opinion fails to mention any causal relationship between Mother’s private sexual acts and her parenting of Child. Cf., Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006) (parenting decisions should not be intended or designed “to reward parents for prior virtuous conduct, nor to punish them for their human frailties, past missteps, or perceived moral shortcomings in the absence of demonstrated adverse consequence to the children”); Lockmiller v. Lockmiller, (Tenn. Ct. App. Dec. 30, 2003) (sexual indiscretion does not, by itself, disqualify a parent from being awarded custody, but it may be relevant if it involves the neglect of the child). Nonetheless, the opinion is replete with examples of Mother’s emotional instability and chronic poor judgment, all of which provides more than enough support for the Court’s decision to reverse the trial court. I think the Court was wrong to reference the fact that Mother sent graphic sexual images to other adults as a basis for its decision in the absence of showing of how that private sexual activity impacted her ability to parent.

Ward v. Ward (Tennessee Court of Appeals, Middle Section, June 20, 2013).

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

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