Facts: After 3 ½ years of marriage, the parents of one child had a verbal argument during a shopping trip. It escalated when Father choked Mother by her throat. Father was arrested and pleaded guilty to domestic assault. Mother filed for divorce.

During this short marriage, Mother was a stay-at-home parent, and Father was the primary source of income for the family.

Mother proposed that Father have parenting time every other weekend.

Father sought equal parenting time.

While the case was pending, the parents agreed that Father would have parenting time every other weekend from Friday at 6 PM through Wednesday morning.

The trial court found the temporary schedule worked well and allowed both parents to enjoy quality time with the child. The Court also expressed concern about Father’s assault on Mother and credited Mother for being the child’s primary caregiver.

The trial court found that continuing the temporary schedule was in the child’s best interest. Mother was designated the primary residential parent, and Father received 156 days of parenting time.

Father appealed.

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

Father argued the trial court did not maximize his parenting time.

When creating a parenting schedule, Tennessee courts must consider the factors in Tennessee Code Annotated § 36-6-106(a)(1)-(15) to determine the child’s best interest.

Tennessee courts are also directed to craft a schedule that allows both parents to enjoy the “maximum participation possible” in the child’s life consistent with the child’s best interest.

The Court found less than equal parenting time does not conflict with the maximum participation provision:

[W]e find no fault in the court’s decision to set forth a parenting schedule that granted Father less than equal parenting time.

Father is correct in stating that § 36-6-106(a) now directs courts to fashion custody arrangements that permit the “maximum participation possible” for each parent. However, the court’s ultimate determination must be guided by the best interest of the child. . . . Section 36-6-106(a) directs courts to order custody arrangements that allow each parent to enjoy the maximum possible participation in the child’s life only to the extent that doing so is consistent with the child’s best interests.

We note that although several factors weighed in favor of both Mother and Father, child custody litigation is not a sport that can be determined by simply tallying up wins and losses. Custody determinations and ascertaining the best interest of the child require more than a mechanical tallying of the § 36-6-106(a) factors.

Considering Father’s assault of Mother in the presence of Child, we cannot say that the trial court failed to “maximize” Father’s parenting time by ordering a schedule that permitted him 156 days per year with Child. Although several factors weighed equally in favor of Mother and Father, the trial court properly applied § 36-6-106(a) in determining the [] parenting schedule. The parties agree that Child was happy and thriving under the current parenting schedule. Therefore, we affirm the trial court’s decision to name Mother as the primary residential parent and to grant Father that parenting time afforded to him pursuant to the terms of the permanent parenting plan.

The trial court’s judgment was affirmed.

Powers v. Powers (Tennessee Court of Appeals, Middle Section, April 7, 2021). I hope you found this helpful. If you think others could find it useful, share it using the buttons below.