Facts: Mother and Father are the unmarried parents of Child. Once paternity was established, the court approved their agreed parenting plan that provided for equal parenting time and designated Mother as the primary residential parent.

Five years later, Father petitioned to change custody, alleging that Mother engaged in “erratic, irrational, and dangerous” behavior and had been “committed” to a hospital for “psychological and drug abuse reasons.”

The trial court modified the parenting plan by designating Father as the primary residential parent. Mother’s parenting time was limited to one overnight twice a month plus visitation on some holidays from 8 a.m. until 5 p.m.

Mother appealed.

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

Mother argued the trial court erred by “severely and inappropriately” limiting her parenting time without first making a finding under Tennessee Code Annotated § 36-6-406 that her conduct justified such a limitation.

Tennessee Code Annotated § 36-6-406 provides that parenting time “shall be limited” if the court finds that a parent engaged in certain conduct spelled out in the statute, including things like physical or sexual abuse, a pattern of emotional abuse, being convicted of certain sexual offenses, having unresolved substance abuse issues, engaging in “the abusive use of conflict”, and a host of other factors, including this catchall: anything the court “finds adverse to the best interests of the child.”

After reviewing the record, the Court concluded that the limitation of Mother’s parenting time was warranted under the circumstances:

In crafting the modification of the parenting plan, the court was particularly concerned with, and put much weight on, Mother’s lack of veracity to the court and to Father regarding the extent of her mental health issues in the possibility that she would not be forthcoming in the future if her ability to parent [Child] was impaired. The court’s concern was supported by the medical records and testimony in the record. . . . Considering the record as a whole, the trial court did not abuse its discretion in adopting a parenting schedule that permits Mother unsupervised overnight weekend visits with [Child] twice per month and on alternating holidays. It was not necessary for the court to make a finding with respect to section 36-6-406 because the modification to the parenting schedule does not severely and inappropriately limit Mother’s parenting time.

Thus, the trial court’s modification to the parenting schedule was affirmed.

K.O.’s Comment: (1) Counting a “day” the way we do for child support purposes, I count that Mother only receives 24 days of parenting time each year. Whether justified or not, how is that not a severe limitation on her parenting time? In Strickland v. Strickland, the Court says awarding only 120 days “greatly minimizes” the alternate residential parent’s time. In In re Grace N., the Court says 80 days is “standard parenting time” such that anything less than 80 days constitutes a “minimal amount” of parenting time. Awarding only 24 days of parenting time may be appropriate under the circumstances of this or any other case, but surely it constitutes a “severe” limitation on parenting time in any case.

(2) There are many ways parenting time can be limited or restricted; a court is not limited to the circumstances set out in Tennessee Code Annotated § 36-6-406. I covered this topic in some detail in my recent Tennessee Family Law Update 2016 seminar. Here is the slide from the seminar that summarizes the ways parenting time can be restricted or limited:

In re Emily M. (Tennessee Court of Appeals, Middle Section, November 30, 2016).

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