Facts: Mother and Father, the parents of two children, divorced after seven years of marriage.

In a hearing on a temporary parenting plan, the trial court found Father was “not credible” and “evasive.” Mother’s boyfriend was deemed “a horrible witness.” Mother, however, was found to be “impressive,” and her role as the children’s primary caregiver weighed in favor of a temporary schedule that limited Father to alternating weekends. The trial court cautioned Mother she would “be well served not to expose the children to” her boyfriend.

At trial, Mother’s proof focused on Father’s history of alcohol abuse. Father countered that he completed an inpatient treatment program and had been sober for a year.

Father’s proof focused on Mother’s relationship with her boyfriend. At the hearing on the temporary parenting plan, Mother largely denied being romantic with her boyfriend. However, by the time of the divorce trial, Mother had given birth to her boyfriend’s child, who was conceived a few months after the hearing on the temporary parenting plan.

The trial court found Mother lied about her relationship with her boyfriend and, in contrast to the earlier hearing, Father was found to be “credible.” The trial court flipped the temporary schedule, naming Father the primary residential parent and limiting Mother to alternating weekends. The trial court also ordered that “neither parent shall have guests of the opposite sex overnight under inappropriate circumstances.”

Mother appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Primary residential parent. After bench trials, trial courts must make findings of fact and conclusions of law that demonstrate the court considered the statutory best-interest factors and clearly articulate the court’s reasoning in reaching its conclusion regarding the child’s best interest.

Trial courts should be precise in making child-custody findings to facilitate meaningful appellate review. While there is no bright-line test to assess the sufficiency of factual findings, the trial court’s findings of fact must include the steps by which the trial court reached its ultimate conclusion on each factual issue.

Mother argued the trial court’s conclusion that the children’s best interest would be served by naming Father the primary residential parent was based on improper factual findings. The Court agreed:

Here, the trial court did undertake an analysis of the relevant best-interest factors. Some of those factors are considered in detail by the trial court. But often the trial court’s findings do little to illuminate its reasoning. Take factor (1) as an example. The trial court’s finding as to this factor is as follows:

The Court finds that when the determination of temporary custody occurred a year ago, this factor strongly favored Mother. Mother has continued to be the primary caregiver under the Court’s temporary parenting order. Considering the proof presented at trial, the Court now finds that this factor only slightly favors Mother.

Thus, the trial court notes that while Mother has continued to be the primary caregiver of the children, this factor—involving which parent has performed the majority of parenting responsibilities for the children—now only slightly favors Mother. But the trial court’s order does not provide any factual findings explaining why it made this determination, particularly given a later finding that Mother “was performing most of the parenting responsibilities leading up to trial.”

Here, we are simply unable to determine what facts lead the trial court to find that this factor favored Mother only slightly by the time of the final hearing. Instead, the trial court’s finding on this factor amounts to little more than a conclusory determination that a factor favors one parent without any factual findings whatsoever to underpin this allocation. We have previously held that such a practice is not sufficient to permit meaningful appellate review. Thus, the trial court’s findings as to Mother’s role as the children’s primary caregiver were both deficient and contradictory, an issue that affects more than one of the statutory best-interest factors.

Importantly, the trial court focuses considerable attention on Mother’s paramour. Indeed, [her boyfriend] was mentioned with regard to factors (2), (8), (9), and (12). Certainly, Mother’s relationship with [her boyfriend] was relevant to some factors. We have difficulty, however, discerning how Mother’s relationship with [her boyfriend] was relevant to factor (2)—concerning the parent’s past and future potential for performing caregiving responsibilities and facilitating the relationship between the children and the other parent. Nothing in the trial court’s findings as to this factor explains how Mother’s relationship interfered with her performance of caregiving responsibilities or facilitation of the relationship between Father and the children. As such, we are left to wonder how the trial court’s findings support its conclusion that this factor slightly favors Father. Indeed, without some guidance as to how the trial court reached its decision, we are left with doubt as to whether the trial court properly refrained from using its custody decision to penalize Mother for her decision to engage in a relationship with [her boyfriend].

Even more importantly, the trial court focused heavily on [her boyfriend’s] testimony and credibility in its final order. But [her boyfriend] did not testify at the final hearing, nor was a transcript of his prior testimony introduced at trial. Mother asserts that under these circumstances, it was error for the trial court to rely on the prior testimony. We agree.

Paramour clause. Absent the parents’ agreement, a paramour provision cannot be affirmed on appeal without evidence it is in the best interests of the children.

The Court was also critical of the trial court’s paramour clause:

The trial court imposed what is commonly known as a “paramour provision” in the permanent parenting plan. Although the prohibition against having overnight guests of the opposite sex applies equally to both parents, no testimony was presented to indicate that there was a concern that Father was having overnight guests. As such, this prohibition appears to be aimed at Mother’s relationship.

Respectfully, the manner in which the trial court imposed this prohibition is erroneous. As an initial matter, we note that the language chosen by the trial court is fatally vague in that it prohibits all overnight guests of the opposite sex “under inappropriate circumstances.” The plain language of this prohibition does not limit its application only to those times when the children are present; a plain reading of its terms suggests that it applies regardless of where the children are residing. Moreover, the caveat “under inappropriate circumstances” is not defined, leading both this Court and surely the parties to guess as to its application. In general, trial courts should endeavor to enter orders that are clear, specific, and unambiguous lest the court is unable to enforce its order through its contempt power. Respectfully, the paramour provision contained in the permanent parenting plan falls far short of these requirements.

As such, the order contains no finding that such a prohibition is in the best interests of the children, much less factual findings that would serve as the basis for that determination.

The Court vacated the trial court’s judgment and remanded the case so the trial court could enter an order that complies with this decision. The trial court has the discretion to reopen the proof regarding the circumstances that existed at the time of trial and the circumstances that exist today. Mother was also awarded her attorney’s fees on appeal.

Camacho v. Camacho (Tennessee Court of Appeals, Middle Section, October 7, 2022).

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