Mandatory Reduction of Parenting Time Challenged in Livingston, Tennessee: Burchfield v. Burchfield

FactsWhen Mother and Father divorced five years ago, their agreed parenting plan designated Mother as the primary residential parent and vested Father with 141 days of parenting time.

Tennessee parenting timeAfter the divorce, conflict between the parents increased dramatically, especially during custody exchanges. At one exchange, Father punched the rear passenger door of Mother’s vehicle, denting the door.

Mother petitioned to modify the parenting plan to reduce Father’s parenting time. Father counter-petitioned to be designated the primary residential parent and receive equal parenting time.

After eight days (!) of trial, the trial court found that Father committed an act of physical abuse by punching Mother’s car door, engaged in a pattern of emotional abuse, and abusively used conflict in ways that harm the children. Father’s parenting time was reduced from 141 days to 104 days. Mother was awarded sole decision-making authority and 75% of her attorney’s fees.

Father appealed.

On AppealThe Court of Appeals affirmed the trial court.

Tennessee Code Annotated § 36-6-406(a) requires that a parent’s parenting time be limited if the parent is found to have committed abuse, among other things. This language is mandatory. If the finding is made, parenting time must be limited.

Subsection (d) of the same statute says parenting time may be limited if the abusive use of conflict by the parent is harming the children, among other things. This language is permissive, allowing a court to limit parenting time when appropriate.

The Court held the reduction in Father’s parenting time was well within the trial court’s authority:

Father does not challenge the trial court’s findings of fact relating to the determination that he committed abuse. Rather, he asserts that the trial court erred in limiting his parenting time pursuant to Tennessee Code Annotated § 36-6-406 because, although he exhibited disagreeable conduct toward Mother that may have adversely affected her, the record contains no proof that his behavior adversely affected the children. This argument is without merit. Under Tennessee Code Annotated § 36-6-406(a)(2), the trial court’s duty to limit or restrict the abusing parents residential parenting time is mandatory and is not limited to situations where the parent’s abuse adversely affected the children.

The trial court’s reduction of Father’s parenting time to 104 days per year was affirmed.

K.O.’s Comment: (Tennessee Court of Appeals1) The Court said, “The children need the parties to coexist without continual conflict.” This sentence sums up the majority of postdivorce litigation between parents.

(2) This opinion contains page after page of detailed recitations of the testimony of each witness, little of which is helpful or necessary. The length of appellate opinions continues to grow. Open an old Tennessee Reporter, and you’ll see that appellate opinions were much more concise than they are today. There’s something to be said for brevity.

Burchfield v. Burchfield (Tennessee Court of Appeals, Middle Section, May 21, 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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