Facts: Mother and Father are the never-married parents of Child. Nine days after Child’s birth, Father petitioned to establish parentage, custody, and child support. Both parents were minors when Child was born.

A few months later, parentage was established. Father was awarded parenting time every weekend. Father’s time expanded two months later to include an overnight visit every Wednesday.

Father’s time was temporarily suspended while the Department of Children’s Services conducted several investigations into allegations during his parenting time. After all the allegations were found to be unsubstantiated, Father’s parenting time resumed.

The trial court found the best-interest factors weighed equally for Mother and Father. It designated the parties as joint primary residential parents, ordered an alternating-week schedule, and ordered joint decision-making authority.

Mother appealed.

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

When determining custody arrangements, Tennessee courts must be guided by the child’s best interests. Tennessee courts must determine which parent is comparatively more fit to have primary residential responsibility of the child. To conduct this analysis, courts must consider the relevant factors in Tennessee Code Annotated § 36-6-106(a).

Factor one requires courts to consider the “strength, nature, and stability” of the child’s relationship with each parent, including whether one parent has “performed the majority of parenting responsibilities relating to the daily needs of the child.”

Factor five requires courts to consider “the degree to which a parent has been the primary caregiver,” which is defined as the parent who has taken the greater responsibility for performing parental responsibilities.

On these factors, the trial court found that “in the initial months, [while] Mother and Mother’s parents were primarily taking care of these responsibilities, Father did step up and both sets of grandparents also played a very large role.” The trial court also found that while Mother was the primary caregiver “early on,” Father “stepped up fairly early in [Child’s] life.” The trial court found factors one and five equal between the parties.

The Court found the evidence did not support these findings:

From the time of [Child’s] birth in August 2020 until the entry of the first temporary parenting plan on November 12, 2020, [Child] lived with Mother the vast majority of the time, while Father visited a few hours per week during some weeks but then he exercised no visitation at other times. From the entry of the first temporary parenting plan in November 2020 until the entry of the final order on August 12, 2022, Mother was designated the primary residential parent with a majority of the parenting time. Throughout this period, Mother exercised the majority of the parenting time, made the majority of the doctors’ appointments and visits, and overall performed the majority of the parenting responsibilities.

While testimony suggests that both parents share a strong relationship with [Child], Mother performed a majority of the parenting responsibilities from [Child’s] birth until the entry of the final order. Therefore, we find that the evidence preponderates against the trial court’s finding that [these factors are] equal between the parties and further find that [these factors favor] Mother.

Mother also argued the trial court erred by designating the parents as joint primary residential parents. The Court agreed because Tennessee Code Annotated § 36-6-410(b) provides that designation is only the parents share equal time and the parents agree to it. Absent an agreement, the trial court must designate one parent as the primary residential parent, even if they share equal time.

Because the Court determined “the sum of the best-interest factors slightly weighed in favor of Mother,” the Court designated her the primary residential parent.

K.O.’s Comment: Compare this with the recent opinion in Bumbalough where the Court noted “that a mother’s care for a child during the early months of a child’s life does not, by itself, make the mother the primary caregiver.”

Source: Hasley v. Lott (Tennessee Court of Appeals, Middle Section, July 20, 2023).

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