Child Custody to Abusive Parent Vacated in Livingston, Tennessee Divorce: Carr v. Carr

Facts: Mother and Father are the parents of Child.

After their divorce trial, the trial court found that Father engaged in physical abuse of Mother. It also found that Mother had been an absentee parent of late, suffered from drug issues, and placed Child in danger by once leaving Child in a hot vehicle with the windows up.

Referencing the factors in the best-interest statute, Tennessee Code Annotated § 36-6-106(a), the trial court designated Father as the primary residential parent. Mother received 96 days of parenting time each year.

Mother appealed.

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

Tennessee custodyTennessee Code Annotated § 36-6-406(a) requires that a parent’s parenting time be limited if the court determines the parent has engaged in, among other things, physical or sexual abuse or a pattern of emotional abuse of the parent, child, or of another person living with the child, as Father was found to have done here.

Subsection (d) of that statute provides that the trial court may limit parenting time if it finds, among other things, that a parent has neglected or failed to substantially perform parenting responsibilities or suffers an impairment from substance abuse that interferes with performing parenting responsibilities, as Mother was found to have done here.

Mother argued the trial court’s finding of domestic violence requires that Father’s parenting time be limited, which would arguably preclude him from being the primary residential parent.

The Court of Appeals could not determine the extent to which the trial court considered the requirement that it limit parenting time when it finds domestic violence:

Tennessee Code Annotated § 36-6-406(a)(2) embodies a statutory mandate. The decision to name Father is primary residential parent and to adopt the residential parenting schedule is also affected by the court’s findings relative to certain behavior of Mother, particularly her home environment and an incident wherein the court found Mother put [Child] in danger by leaving him in a hot car. . . .

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Our ability to review the decisions to designate Father as primary residential parent and to adopt the parenting plan, affording the trial court the deference called for by the standard of review, is limited because the court did not identify and apply the appropriate legal principle, specifically Tennessee Code Annotated § 36-6-406, in making the decisions.

The trial court’s judgment was vacated and the case remanded for additional findings regarding the impact of Tennessee Code Annotated § 36-6-406 on the evidence.

K.O.’s Comment: The statute says that when the court finds a parent has engaged in domestic violence, that parent’s parenting time “shall” be limited. In In re Emma E., the Court of Appeals says the trial court is “bound” to limit the abusive parent’s parenting time. Failing to do so is reversible error, as the Court found in Jacobson.

Here, the trial court thinks Father should be the residential parent, and the Court’s recitation of the proof demonstrates the wisdom of that determination under the circumstances. But the statute proscribing Father’s conduct says “shall” while the statute proscribing Mother’s conduct says “may.” It will be interesting to see how (or if) the trial court tries to wiggle out of those words.

Carr v. Carr (Tennessee Court of Appeals, Middle Section, March 1, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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