Facts: Child was born out of wedlock to unmarried Mother and Father, two recent high school graduates who lived with their parents during the pregnancy. They lived together for approximately five months after Child’s birth before separating and agreeing to share parenting time.

Roughly one month later, Father petitioned to establish paternity, nearly equal parenting time, and to designate him as the primary residential parent because of Mother’s unstable lifestyle.

Father amended his petition to limit Mother’s parenting time to 80 days, alleging that Mother is inattentive, as evidenced by Child twice burning himself on a hairstyling flat iron while in her care.

Father amended his petition once more to propose nearly equal parenting time again.

Mother requested that she be the primary residential parent with 110 days of parenting time for Father.

While the case was pending, the temporary parenting schedule gave four days each week to Mother and three days to Father.

A three-day trial ensued where the court heard “exhaustive testimony” promoting each parent’s character and critiquing the other parent’s character. Father claimed Mother exhibited questionable behavior. Mother claim that Father relied on his parents to fulfill his parental responsibilities. But the proof showed Child was loved and cared for while in each parent’s care. Both were employed, and both established a suitable residence for Child.

Mother assumed the role of primary caregiver. She scheduled and attended Child’s medical appointments. She acknowledged that Child burned himself while in her care, explained that the injuries were accidental, and she sought prompt medical treatment.

Father admitted he paid no child support and did not contribute to Child’s medical expenses.

The trial court designated Father as the primary residential parent and entered a schedule limiting Mother’s parenting time to 80 days. However, the trial court delayed the start of this schedule until March 2020. Until then, the parties were to continue following the temporary schedule.

In explaining its ruling, the trial court notably mentioned the “tender tears doctrine” and also found “the sex of the [male] Child preponderates in favor of Father.” The trial court also complained about the lack of childproofing in Mother’s residence, considering the burns and that Child can now walk around.

Mother appealed.

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

The Court was critical of the trial court’s reference to Child’s sex and the tender years doctrine:

First, we hold that the court’s reference to the “tender years doctrine” and consideration of Child’s sex in relation to Father’s was a legal error. Tennessee law no longer recognizes the “tender years doctrine”—a presumption that mothers in general are better suited to be primary residential parent than fathers. Moreover, Tennessee Code Annotated § 36-6-101(d) provides as follows:

It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.

The court clearly favored Father based on his shared gender with Child. Next, we note that the court also failed to consider at least two factors that weigh in favor of Mother, namely her performance of the majority of the parenting responsibilities and her status as the primary caregiver. While we share the court’s concern with Child’s injuries while in Mother’s care, we acknowledge that Mother sought medical treatment when necessary and has expressed remorse. Lastly, we believe the court failed to consider the importance of continuity in Child’s life in the length of time in which he has lived in a stable, satisfactory environment. The parties have shared coparenting time since Child’s birth without major incident, albeit Mother has exercised more time than Father. The court’s order permits the continuance of this arrangement until a date certain, when Child attains the age of four years old. No reasoning was provided for this future change in the residential schedule and none is apparent from the record.

In consideration of the foregoing, we reverse the court’s designation of Father at the primary residential parent and designate Mother in his stead. We remand for entry of a permanent parenting plan in which Mother shall exercise 183 days of coparenting time to Father’s 182 days.

The Court reversed the trial court’s judgment.

K.O.’s Comment: (1) The tender years doctrine, which has long been abolished by statute, favored mothers over fathers solely based on gender. While the trial court would’ve been better off not referencing it, application of the tender years doctrine favors Mother yet the trial court ruled for Father. How does reference to the tender years doctrine support reversal of the trial court’s ruling for Father?

(2) The trial court explicitly referenced its consideration of the statutory best-interest factors found at Tennessee Code Annotated § 36-6-106(a). Trial courts need not list every relevant factor along with an explanation of how that factor affected the overall custody determination. How can the Court conclude the trial court failed to consider certain factors when the trial court expressly says it did?

(3) From the Court’s summary of the proof, the Court’s ruling seems like the right result, i.e., it sounds like what I would’ve done had I been the trial judge. But trial court judgments in child-custody determinations are reviewed under the abuse-of-discretion standard of review that limits reversal to situations where the trial court’s ruling falls outside the spectrum of decisions that might reasonably result from applying the correct legal standards to the evidence. Can that be said to have occurred here? While the Court probably reached the best result, the opinion strains to find a legal justification.

Deaton v. Williams (Tennessee Court of Appeals, Western Section, February 21, 2020).