Trial Court Ordered to Award “Significantly More” Parenting Time in Murfreesboro, Tennessee Divorce: Hindiyeh v. Abed

Facts: During this 2 ½ year marriage, the parties had one child.

At trial, Mother presented evidence of Father’s treatment of her. The proof showed that he once threw her out of the house without allowing her to take her wallet or keys and frequently threatened her with “punishment.” Mother testified that he was “very emotionally abusive” to her.

sleepy dogThe proof showed that while Father worked the night shift, i.e., from 2 p.m. until 10 p.m., he would move to day shift in three months.

After finding that Father did not physically assault or physically abuse Mother, the trial court designated Mother as the primary residential parent and awarded Father parenting time on every other weekend and some holidays for 80 days each year. The trial court also found that Father’s parenting schedule could be “revisited” if he moved to day shift.

Father appealed.

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

Father argued that, given the statutory requirement that custody arrangements permit both parents to enjoy the maximum participation in their child’s life consistent with the child’s best interests, the trial court found nothing to justify such an imbalanced award of parenting time in Mother’s favor.

Mother responded that Father abused her during the marriage and, moreover, Father’s work schedule when working second shift means he could not see the child very much anyway.

The Court found the trial court’s ruling “puzzling”:

The trial court’s findings relative to [parenting issues] are favorable to both parents. The trial court found that [Mother] enjoyed a closer relationship with the child because she was granted more time with the child during the pendency of the case. Despite [Mother]’s contentions, the trial court found no evidence of any physical abuse perpetrated by [Father]. Given the trial court’s findings, it is puzzling why the trial court entered a permanent parenting plan granting [Father] only 80 days of parenting time with the child per year to [Mother]’s 285. In short, the permanent parenting plan entered by the trial court contradicts the trial court’s own favorable findings regarding [Father]. The evidence does not preponderate against these findings. [Father]’s late work schedule in itself does not justify such a minimal award of parenting time. Given the evidence in the record on appeal, the trial court’s own findings, and the statutory goal of maximum participation for both parents in the life of the child, the trial court erred in granting [Father] only 80 days per year with the child.

The case was remanded to the trial court with explicit instructions to award Father “significantly more time” with the child, although the Court said the trial court is “not required to award precisely equal time.”

K.O.’s Comment: (1) The trial court only made findings regarding “physical” abuse even though there was evidence of emotional abuse. Tennessee Code Annotated § 36-6-406(b) requires that parenting time be limited if the court finds the parent “engaged in physical or sexual abuse or a pattern of emotional abuse.” Such a finding here would’ve protected the trial court’s decision from reversal.

(2) The Court’s statement that Father’s work schedule would not justify the trial court’s decision is contradicted by ample caselaw to the contrary. See, e.g., Kathryne B.F. v. Michael David B. and Wall v. Wall.

Hindiyeh v. Abed (Tennessee Court of Appeals, Middle Section, April 25, 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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