Facts: After one and ½ years of marriage, Mother and Father, the parents of one child, divorced.

Mother requested that Father receive 156 days of parenting time, while Father sought equal time.

An agreed temporary parenting plan established equal time while the divorce was pending.

Each parent argued that the other parent’s parenting time should be limited because of physical abuse inflicted on the other, which both testified to. Mother also presented proof from Father’s ex-wife of physical and emotional abuse within their marriage that ended over 10 years earlier, which Father disputed.

Proof was also presented about an incident where the child bit Father’s penis through his shorts—drawing blood (!!!)—while he was putting the child down for a nap. Mother said this “set off red flags and major alarms” for her.

Both parents submitted proposed findings of fact and conclusions of law describing the evidence in the record related to abuse.

Without explanation, the trial court found Father’s ex-wife to lack credibility. The trial court ordered equal parenting time and made no findings regarding the abuse allegations.

Mother appealed.

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

Tennessee trial courts must make specific findings of fact and conclusions of law when entering a judgment. Each judge must make findings of fact necessary to reveal the steps by which they reached their conclusion on each factual issue.

Evidence of physical abuse to the child, the other parent, or any other person must be considered when determining a child’s best interest. Also, Tennessee Code Annotated § 36-6-406(a)(2) suggests parenting time should be limited if the trial court finds the parent physically abused the child or someone else living with the child.

Mother argued the trial court’s failure to make findings about the allegations of abuse led it to enter a parenting schedule not in the child’s best interest.

The Court found error in the trial court’s silence on the disputed claims of abuse:

The record before us is replete with evidence presented by both parties involving alleged abuse between the parties and against the child. Thus, [physical abuse] was clearly at issue and the trial court was required to resolve the disputed issues of whether abuse occurred and, if so, who perpetuated that abuse. And the trial court was tasked with including enough of the underlying facts as necessary to explain its ultimate decisions on those issues. Perhaps the trial court determined that none of this testimony was credible or that the violence did not require any limitation of either party’s parenting time. However, if the trial court made such a determination it should have more artfully expressed itself so that we are not left to wonder about its reasoning.

Here, we do not have allegations of abuse that went undisputed. Mother’s allegations of abuse were not admitted by Father, and Mother contends that any abuse by her towards Father was a result of Father’s aggression. Thus, this case presents the classic “she said, he said” scenario that must be resolved by virtue of credibility. Without some indication of the trial court’s credibility determinations regarding the abuse that each party alleged they suffered and some reasoning in apparently overlooking these allegations, we are unable to determine where the preponderance of the evidence lies. If, on remand, the trial court finds evidence of abuse, it should consider the mandatory limitation on the offending party’s parenting time required by Tennessee Code Annotated § 36-6-406.

The Court vacated the trial court’s ruling and remanded the case back to the trial court.

K.O.’s Comment: The Court referred to the “mandatory limitation on the offending party’s parenting time required by Tennessee Code Annotated § 36-6-406.” But is it a mandatory limitation?

It certainly used to be. Before the legislature changed the law in 2020, Tennessee courts had no choice but to limit a parent’s parenting time if it found the parent had abused the child, the other parent, or anyone living with the child.

But in 2020, the legislature amended to law to add that parenting time “shall be limited if the limitation is found to be in the best interest of the minor child.” I interpret that addition to mean that the limitation is no longer mandatory. But it’s possible the Court of Appeals reads it differently. Therefore, readers should note the Court’s characterization of the statute as still providing a “mandatory limitation.”

Bean v. Bean (Tennessee Court of Appeals, Middle Section, December 21, 2022).

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