Facts: Mother and Father, the parents of one child, divorced after four years of marriage. By the time the divorce was filed, Mother lived in Atlanta and Father in Tennessee.

The trial court considered 13 text messages and four emails that Mother sent Father when the divorce litigation began. The messages showed Mother called Father an “idiot” four times and twice called him a “shitty” parent. By the time of trial, Mother spoke well of Father. The trial court speculated that Mother’s “change may have been a result of enlightenment on the statutory factors” the court must consider when determining a parenting plan.

While both parties were found to be “excellent” parents, Father was designated the primary residential parent largely because the trial court found:

• Mother was likely to be less willing than Father to encourage a close relationship between the child and the other parent, and
• neither parent had been the child’s primary caregiver.

Mother received 121 days of parenting time.

Mother appealed.

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

All child-custody determinations in Tennessee must be made based on the best interest of the child.

Tennessee Code Annotated § 36-6-106(a) lists 15 factors that courts must consider when determining the child’s best interest. When analyzing these factors, Tennessee courts do not hold each parent to the standard of perfection. Instead, they must conduct a comparative-fitness analysis to determine which parent is comparatively more fit than the other.

Willingness to promote the child’s relationship with the other parent. Mother argued the text messages and emails have no probative value on her willingness to promote the parent-child relationship because none of the name-calling occurred in the child’s presence, none of the messages threatened to interfere with Father’s parenting time, and the messages were sent in the early stages of the divorce and Father conceded at trial that their communication since then “has been pretty good.”

The Court agreed that the trial court incorrectly interpreted the evidence:

It is common for divorcing parents to harbor animosity toward one another, especially in the early stages of the divorce. It is also common for divorcing parents to be uncivil in their communications with one another. By containing their incivility to private, written messages inaccessible to their infant child, Mother and Father sheltered the child from the brunt of the verbal attacks.

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[W]e hold that the court erred by overemphasizing the petty insults that Mother directed at Father in private communications during the early stages of the divorce. The content of those messages is not probative of Mother’s willingness to facilitate and encourage a good relationship between the child and Father. . . . The court erred by presuming that Mother would seek to undermine the child’s relationship with Father absent any evidence that Mother had previously interfered with their relationship or threatened to do so in the future. All evidence in the record preponderates in favor of the opposite conclusion — that Mother took affirmative steps to facilitate and encourage the child’s relationship with Father. To conclude otherwise would be to resolve the case on a clearly erroneous assessment of the evidence, which constitutes an abuse of discretion.

Primary caregiver. Mother argued the trial court downplayed her role as the child’s primary caregiver. The Court agreed after an interesting analysis of this question:

Twenty-four months elapsed from the time the child was born until the trial court issued its opinion. The trial court acknowledged that Mother was the primary caregiver for the first four months of the child’s life. For the next 20 months, the parties co-parented on an alternating-week basis. Thus, assuming each parent fully maximized their allotted co-parenting time, each parent would have been responsible for 10 months of parenting under the temporary parenting plan. In total, Mother would have been primarily responsible for the child for 14 of the 24 months, or 58% of the time. Father would’ve been primarily responsible for the child for 10 of the 24 months, or 42% of the time.

[F]ather testified that in the 10 months since the temporary parenting plan took effect, he left the child at daycare or with third parties 13 times on days that he was not scheduled to work. Father testified that he was called in to work on eight of those days; he used the other five days for personal errands (e.g., shopping, vehicle maintenance, attending to a family emergency, etc.). . . .

[T]he trial court abused its discretion in finding . . . that neither party was the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities. The record clearly shows that Mother was the primary caregiver in the first four months of the child’s life and that Mother performed more parenting responsibilities than Father under the temporary parenting plan.

After also examining the parents’ work schedules, the Court concluded that “a proper balancing of all factors leads to the conclusion that Mother should have been designated as the primary residential parent.”

The trial court’s judgment was reversed, and the case remanded back to the trial court to create a new parenting plan with Mother as the primary residential parent.

Brown v. Brown (Tennessee Court of Appeals, Eastern Section, August 30, 2018).