Primary Residential Parent Designation Challenged in Morristown, Tennessee Divorce: Mangum v. Mangum

FactsHusband and Wife divorced after six years of marriage. They are the parents of two children.

When the parties separated, Wife filed for an order of protection. Shortly after requesting it, Wife voluntarily dismissed her petition for an order of protection.

domestic violence in tennesseeAt trial, Wife testified that she was the victim of domestic abuse. While Husband denied Wife’s allegations at trial, he was on probation after being found guilty of committing a financial crime. Because committing domestic violence violated his probation, and to avoid having his probation revoked, Husband admitted to his probation officer to slapping Wife in the presence of the children. As a condition of his probation, he had to participate in domestic-violence counseling.

During the trial, the parties announced their agreement to an equal-time parenting schedule. The Court accepted their agreement and awarded equal parenting time with joint decision-making authority. Husband was designated the primary residential parent.

In designating Husband is the primary residential parent, the trial court said:

I think Mom there’s a lot of testimony from friends of yours and insinuating on the record that you were planning on moving somewhere. And if that’s what’s best for you . . . The Court absolutely is not telling someone they can or cannot move. The father is anchored. I know the kids will have a roof over their head there. And for that reason, the Court is choosing to make the father the primary residential parent. But the main reason I’m doing that is because of this indication that you may move . . . .

Wife appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

In a Tennessee divorce where parenting or custody is at issue, the court must order a parenting plan that designates one parent as the “primary residential parent.”

Tennessee Code Annotated § 36-6-406(a)(2) requires a Tennessee court to limit a parent’s parenting time if the court finds that parent has engaged in various types of conduct, including physical abuse of the other parent.

Wife argued the trial court had to limit Husband’s parenting time because of domestic violence.

The Court found the trial court’s findings to be indequate:

As noted by Wife, in naming Husband primary residential parent, the only factor that the trial court appeared to consider was the stable environment offered by Husband in the marital home. The court did not enumerate or discuss the statutory factors as to the education, character, and experience of the parents, their economic circumstances and employment schedules, and their conduct. There is no discussion of the “best interests of the children.” The trial court did not mention or discuss the children’s ages, habits, mental and emotional makeup; the relative location of the parents’ residences; the relationships between the children, caregivers, and family members; or the relationships between the parents and children. It made virtually no findings of fact regarding the abuse allegations but designated Husband as the primary residential parent. We must remand for the court to make appropriate findings as to the abuse issue in addition to all other relevant and appropriate statutory factors.

The trial court’s designation of Husband as the primary residential parent was vacated and the case remanded for additional findings.

K.O.’s Comment: (1) A Washington, D.C. advocacy group called DV LEAP filed an amicus brief on Wife’s behalf, requested permission to participate in oral argument, and were granted that opportunity.

(2) How must the trial court apply Tennessee Code Annotated § 36-6-406(a)(2) where both parents agreed that equal parenting time was in their children’s best interest?

Tennessee child's best interest(3) The Court of Appeals observed in Fletcher v. Fletcher: “Divorces are like snowflakes; each one is different.” The same must be said for determinations of children’s best interest.

This case draws attention to whether, as a matter of public policy, we should have laws that require a certain outcome in a given situation, as Tennessee Code Annotated § 36-6-406(a)(2) requires. It is easy to envision a scenario where the application of this statute would be against a child’s best interest.

Should we ever require mandatory outcomes regarding a child’s best interest? Or is that determination best left to the judge’s discretion based on the unique circumstances of each case?

Mangum v. Mangum (Tennessee Court of Appeals, Eastern Section, April 24, 2019).

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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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