Facts: Father and Mother, the married parents of Child, separated after two years of marriage. After their separation, they shared equal parenting time via a schedule of alternating days.

Two and a half years after they separated, Mother filed for divorce and submitted a proposed parenting plan awarding Father only 80 days of parenting time and proposing that she have sole decision-making authority for all major decisions.

Father proposed that they share equal parenting time via a two-two-three schedule and joint decision-making authority.

At the hearing on the temporary parenting schedule, the trial court awarded nearly equal parenting time, only slightly favoring Mother because of her availability during the summer weeks.

Before trial, Mother proposed a new parenting plan awarding 144 days to Father and only giving her sole decision-making authority over major educational decisions (Mother is a teacher) while also reserving for her “final say on all major decisions.”

Still, Mother testified that Child was doing great, she and Father got along and communicated, they had no major disagreements about Child, and they had been essentially sharing parenting responsibilities equally since the separation. Mother agreed that Father properly cared for Child during his parenting time and possessed an equal ability to perform parenting responsibilities.

Applying the best-interest factors of Tennessee Code Annotated § 36-6-106(a), the trial court found four factors were equal, three were inapplicable, and seven favored Mother to varying degrees. Accordingly, the trial court designated Mother as the primary residential parent, awarded Father 120 days of parenting time, and granted joint decision-making authority.

Father appealed.

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

Tennessee courts must order custody arrangements that give each parent the maximum amount of time possible with the child consistent with the child’s best interest. In addition, Tennessee courts must consider the factors in Tennessee Code Annotated § 36-6-106(a) to determine the parenting schedule that’s in the child’s best interest.

The Court found the evidence preponderates against many of the trial court’s findings regarding specific best-interest factors. Because this post cannot address them all (this is a lengthy opinion (32 pages!) filled with a lot of factual minutiae), I’ll only address the ones I find noteworthy: their differing parenting styles/routines and pornography.

Different routines. Their differing parenting styles invoked best-interest factors seven (the child’s emotional needs and developmental level) and 14 (the parents’ work schedules). Mother complained that Father’s routine was not as structured as hers.

While the trial court found these factors weighed in favor of Mother, the Court found the evidence supported a finding that they were equal:

It appears that Father’s schedule may indeed vary more than Mother’s, to the extent that he takes [Child] to more and later outings. However, just because divorced parents have different parenting styles does not mean one is necessarily better. … Moreover, Mother admitted at the first hearing that she did not really know Father’s routine, despite her speculation that he lacked one. … [M]other’s irresolute testimony is insufficient to discredit the evidence Father provided of how he parents [Child] with some general structure and consistency, albeit perhaps not up to Mother’s subjective standards.

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Again, we reiterate that a parent’s choice to have a slightly different schedule for a child then the other parent does not necessarily mean that one schedule is superior. … [T]he main concern in fashioning parenting schedules is the child’s welfare. [T]he general undisputed testimony is that Father’s work schedule is flexible enough to allow him to take care of [Child].

Pornography. Mother complained that Father was “addicted” to pornography, invoking factor eight (each parent’s moral, physical, mental, and emotional fitness as it relates to their parenting abilities). The trial court found this factor heavily favored Mother. The Court found it equal:

[T]he undisputed testimony regarding Father’s pornography usage was that it has had no effect on [Child] whatsoever. This factor relates to a parent’s fitness “as it relates to their ability to parent the child.” … [B]ecause the proof was undisputed that Father’s pornography habit … had no effect whatsoever on [Child], the trial court was in error in relying on these matters as proof of a lack of moral or mental fitness as it relates to his parenting [Child].

After finding that the evidence preponderates against the trial court’s findings as to various best-interest factors, the Court reversed the parenting schedule for not providing maximum participation to both parents:

Here, the trial court’s parenting plan is notably lopsided. … [T]he evidence is clear that each party is a good parent and has a good relationship with [Child], whatever their personal or relational issues may be. Moreover, the parties shared equal time by agreement for 20 months before the court entered its temporary order, which then afforded the parties almost equal time for roughly seven months. Yet, the trial court ultimately limited Father’s time to 120 days, giving Mother 245 days. While courts shall not draw any presumptions from a temporary parenting plan, when a temporary parenting plan is in place for a long time, courts may consider that when determining the details of a permanent plan.

Additionally, the fact that the trial court ultimately adopted a parenting plan that afforded Father fewer parenting days than Mother proposed is noteworthy.

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[I]n light of our analysis of the best-interest factors, the fact that Mother was willing to afford Father more days than the trial court ultimately ordered, and the parties successfully parented essentially equally for an extended period, the trial court did not have a justifiable reason for thusly restricting Father’s parenting time. … Therefore, and in light of the fact that the General Assembly has established the aspirational goal for the courts to maximize each parent’s participation in the life of the child, we reverse and remand with instructions for the trial court to establish a parenting schedule that maximizes each parent’s participation in the life of the child.

The Court found the trial court abused its discretion because it reached an illogical conclusion not supported by the evidence. The Court instructed the trial court on remand to fashion a “more equal” (hint, hint) parenting schedule.

K.O.’s Comment: This case is consistent with the McDaniel case, where the Court held it was reversible error for the trial court to award less time than either parent proposed absent specific findings supported by the evidence.

Woody v. Woody (Tennessee Court of Appeals, Eastern Section, March 8, 2022).

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