Facts: Mother and Father are the parents of Child. In this short marriage, Mother filed for divorce four months after Child’s birth.

Father proposed a parenting plan that provided for equal parenting time.

Mother proposed that Father’s parenting time be limited to daytime visitation until Child reached three years of age, followed by one overnight visit each week until Child reached the age of five, followed by every other weekend.

Mother alleged Father abused alcohol and drugs, which allegations Father denied. Mother further alleged Father did not perform his parenting responsibilities. Father did not deny leaving Mother and Child at home while he chose to spend each weekend at the family farm nor did he dispute that he chose to go to Colorado with his friends instead of exercising his Court-ordered parenting time. Father also admitted leaving the then six-month-old Child unattended in his car while he went into a convenience store to purchase tobacco.

Mother also alleged Father made inappropriate statements and exhibited very inappropriate conduct regarding Child’s genitals on multiple occasions. Notably, Father did not dispute these allegations.

After a trial, the trial court designated Mother as the primary residential parent. Father’s parenting time was restricted to 48 hours per month, with no overnight parenting time, until Child turns three years old. Once the child reaches the age of three, the trial court ruled Father will receive parenting time every other weekend, i.e., 52 days per year.

Father appealed.

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

Father argued the trial court abused its discretion by severely limiting his parenting time without making any finding that he was guilty of conduct that affected his ability to parent pursuant to Tennessee Code Annotated § 36-6-406.

The Tennessee Legislature has established the aspirational goal for the courts to craft child custody arrangements that permit both parents to “enjoy the maximum participation possible in the life of the child” consistent with the appropriate factors and circumstances set forth in Tennessee Code Annotated § 36-6-106(a). In making such decisions, the needs of the child are paramount, and the desires of the parent are secondary.

However, if the court determines a parent’s conduct may have an adverse effect on the child’s best interest, the court may limit a parent’s residential time with his or her children. Tennessee Code Annotated § 36-6-406(d) lists the following factors that justify imposing a limitation on parental visitation:

(d) A parent’s involvement or conduct may have an adverse effect on the child’s best interest, and the court may preclude or limit any provisions of a parenting plan, if any of the following limiting factors are found to exist after a hearing:
(1) A parent’s neglect or substantial nonperformance of parenting responsibilities;
(2) An emotional or physical impairment that interferes with the parent’s performance of parenting responsibilities as defined in § 36-6-402;
(3) An impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting responsibilities;
(4) The absence or substantial impairment of emotional ties between the parent and the child;
(5) The abusive use of conflict by the parent that creates the danger of damage to the child’s psychological development;
(6) A parent has withheld from the other parent access to the child for a protracted period without good cause;
(7) A parent’s criminal convictions as they relate to such parent’s ability to parent or to the welfare of the child; or
(8) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

After reviewing the record, the Court concluded:

Based on our review of the evidence, even if we completely disregard Mother’s allegations of Father’s drug and alcohol abuse, we find that the undisputed facts concerning Father’s inappropriate statements and conduct concerning the child’s genitals provide sufficient proof to support a finding that this conduct is directly adverse to the best interests of the child. Further, the evidence preponderates in favor of a finding of neglect and substantial nonperformance of Father’s parenting responsibilities. Examples of Father’s neglect and substantial nonperformance of parenting responsibilities include, inter alia, his voluntary decisions to go to the family farm instead of spending time with his child, going on a trip with friends to Colorado in lieu of exercising his limited amount of parenting time with the child, and leaving the child unattended in a vehicle….

As Tenn. Code Ann. § 36-6-406(d) provides, the court may preclude or limit parenting time if a parent’s conduct has an adverse effect on the child’s best interest, and we conclude that Father has engaged in conduct that has an adverse effect on the child. Although the aspirational goal for the courts is to craft parenting plans that permit both parents to “enjoy the maximum participation possible in the life of the child,” the facts in this case justify substantially restricting Father’s parenting time. Accordingly, we affirm the parenting plan and parenting schedule.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: We’ve always known that a parent’s history as the primary caregiver weighs heavily in that parent’s favor in the comparative fitness analysis. What interests me here is the use of Tennessee Code Annotated § 36-6-406(d)(1) as a means to restrict the parenting time of the less active (or comparatively less fit) parent. I believe we will see that particular factor, i.e., -406(d)(1), used in arguments more often.

Thompson v. Thompson (Tennessee Court of Appeals, Middle Section, December 30, 2015).

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