Facts: Mother and Father are the never-married parents of two children. Their agreed parenting plan provided for equal time.

A few years later, Mother moved to Louisiana with her then-boyfriend. Father agreed that their four-year-old Daughter could stay with Mother because he believed it was a temporary move. That fall, Daughter enrolled in a Louisiana school. Meanwhile, Son lived with Father in Tennessee and visited Mother during school breaks.

A year after her move to Louisiana, Mother married Stepfather and advised Father that she intended to stay in Louisiana with Daughter.

Father petitioned to modify custody by awarding custody of both children to him. Mother countered with a proposal that the trial court maintain the split custody arrangement. The trial court adopted Mother’s proposal as a temporary solution until the case could be tried.

For the next four years (!!!), Son lived primarily with Father in Tennessee, and Daughter lived primarily with Mother in Louisiana.

Before the trial, Father amended his petition to allege new allegations about Mother’s home environment (domestic violence, drug use, poor parenting decisions, etc.). Each sought custody, with the other parent receiving 80 days of parenting time.

While the case was pending, both parents remarried and Son and Daughter acquired new half-siblings.

The Court of Appeals succinctly summarized the proof by saying, “Neither parent had a stellar track record. The [trial] court heard abundant evidence highlighting the parents’ missteps.” There was proof of domestic violence, drug use, etc. Rather than covering all these issues, this post will focus on the impact of social media in the best-interest analysis.

Social media posts reflected poorly on both parents. Many of Mother’s negative posts were directed at Father’s wife, who she blamed for posting nude pictures of her on social media. Mother agreed that her relationship with Father’s wife was “toxic.”

Father blamed Mother for Daughter’s use of TikTok. He showed the trial court multiple videos recorded and posted by both Mother and Daughter. Mother agreed that the lyrics sung in Daughter’s videos were inappropriate for a child her age.

Mother found TikTok humorous. She posted hundreds of videos to her public account and re-posted some of Daughter’s videos. There was even a side-by-side duet between Mother and Daughter. At some videos were played at trial, Mother admitted she “probably shouldn’t have done them.” After hearing “how bad” they sounded in court, Mother said she planned to delete her account. But she was unconcerned that Daughter had seen her videos. In her opinion, Daughter had the maturity to distinguish between her “real” mother and her behavior on the Internet.

The trial court adopted Father’s proposed parenting plan with additional provisions prohibiting both parents from posting disparaging remarks about each other on social media. The parents must also ensure that their spouses comply with this provision.

Mother appealed.

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

Tennessee courts apply a two-step analysis for requests to modify a permanent parenting plan. The threshold issue is whether a material change in circumstances has occurred since the trial court adopted the current parenting plan. If a material change occurred, the trial court must determine whether modifying the parenting plan is in the child’s best interest by examining the statutory best-interest factors.

The Court found no abuse of discretion in the trial court’s judgment:

The Court found that testimony from several witnesses was not credible, including Mother and [Stepfather]…. The court also found Mother’s testimony about … [Daughter’s] involvement with TikTok “incredible.” On appeal, we defer to those credibility assessments.

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Turning to the best-interest factors, the court recognized that both parents had shortcomings. Father made multiple “bad and foolish decisions” over the years. He was not involved or interactive with the children. He delegated parental responsibilities to his mother, a known drug user. On the other hand, Mother chose to make inappropriate TikTok videos with [Daughter] and to allow [Daughter] to make similar videos. It was clear to the court from the video evidence that [Daughter] had been influenced by the content of Mother’s videos…. The court also considered the relationship between [Son] and [Daughter]. The children needed each other. The court determined that continued split custody was not in their best interests. So, while both parents had flaws, the court ultimately determined that it was in the children’s best interest to award custody to Father and to limit Mother to 80 days of residential parenting time.

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In determining the children’s best interest, the court was forced to sift through a great deal of disparaging information about both parents. The court did not ignore Father’s missteps. To the contrary, it expressed grave concerns about his delegation of parenting responsibilities and his overall lack of involvement with the children. Even so, in the court size, Father’s parenting flaws “paled in comparison” to the instability evident in Mother’s home.

Noting that the best-interest analysis is a “particularly fact-intensive process,” the Court concluded that the trial court did not abuse its discretion and affirmed the trial court’s judgment.

K.O.’s Comment: (1) This case illustrates how social media and electronically stored information continues to play a more significant role in family-law litigation.

(2) This case also presents the first reference to TikTok in Tennessee caselaw.

King v. Jones (Tennessee Court of Appeals, Middle Section, July 18, 2022).

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