Facts: Mother and Father, the parents of Child, were married for 12 years.

Mother moved out of the marital residence in May 2015. She moved into an apartment with a male friend and took Child with her. She filed for divorce the following month.

Shortly after that, the trial court entered a temporary restraining order prohibiting Mother from exposing Child to her male friend/roommate.

Five days of trial revealed that Mother took several trips with her male friend/roommate after he divorced his wife, including trips to Gatlinburg, Disney World, Colorado, a friend’s wedding in Jamaica, and a cruise where they shared a cabin. Some of those trips took place before she moved out of the marital residence. Mother testified that on those trips her relationship with her male friend/roommate remained platonic.

Mother’s male friend/roommate, who will now be called Boyfriend, testified that his relationship with Mother became sexual in 2016.

Mother returned to the stand and admitted lying under oath in her prior testimony.

The trial court found that Mother was not a credible witness because she would lie under oath for her benefit. The trial court concluded that none of her testimony was credible.

Father was designated the primary residential parent and Mother was awarded 146 days of parenting time per year. She was also ordered to pay $7500 toward Father’s attorney’s fees.

Mother appealed.

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

Although the trial court made detailed findings as to each statutory factor for the best-interest analysis found in Tennessee Code Annotated § 36-6-106(a), Mother argued the trial court was punishing her because of her affair.

The Court disagreed:

Mother complains that the court erroneously denied her request to be designated the primary residential parent because of her infidelity, citing Nelson v. Nelson. Unlike Mother, however, the wife in Nelson readily admitted to her extramarital affair. This case is more like Rayburn v. Rayburn where the wife denied being engaged in an extramarital affair in the face of evidence suggesting otherwise. The Rayburn court noted that a trial court may consider a parent’s untruthfulness under oath in determining child custody and that a parent’s honesty reflects on his or her fitness to be a good custodian.

While a parent’s sexual infidelity or indiscretion does not, ipso facto, disqualify that parent from receiving custody of his/her children, such acts may be relevant to the question of character, and thus to comparative fitness.

* * * * *

In addition to finding Mother was not credible, the trial court questioned Mother’s judgment and her moral and emotional fitness to act as the primary residential parent based on evidence that Mother moved in with her paramour while she was still married and her decision to expose [Child] to this relationship. . . .

Thus, contrary to Mother’s argument, the court does not base its decision to designate Father as the primary residential parent solely on the fact that Mother had engaged in an extramarital affair. Rather, Mother’s decision to expose [Child] to her relationship with [Boyfriend] while she was still married to Father coupled with her dishonesty throughout the litigation, right up until the end of the trial, tipped the scales against Mother. The record shows that Father is a loving and devoted father to [Child] and that he encourages [Child’s] relationship with Mother.

The trial court’s judgment was affirmed.

K.O.’s Comment: Always tell the truth. There is no excuse for failing to do so. Your story may be painful, embarrassing, and humiliating, but when under oath, you must always tell the truth.

Stokes v. Stokes (Tennessee Court of Appeals, Middle Section, March 7, 2019).