Facts: Husband and Wife, parents of Child, divorced after four years of marriage.

At trial, Wife argued against an equal parenting schedule because that requires “a huge degree of communication” while these parties do not communicate.

Husband, who advocated for an equal parenting schedule, admitted that each had opportunities to communicate better but argued that an equal parenting schedule “does force you to coparent.”

In assessing the child’s best-interest factors, the trial court found five factors favored Wife, three favored Husband, four were neutral, and three were inapplicable.

The trial court adopted Husband’s proposed equal parenting schedule, noting that it would maximize Child’s time with both parents, which the trial court identified more than once as “the paramount statutory concern.”

Wife appealed.

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

First, the Court reviewed the evidence and found it preponderated against several of the trial court’s findings regarding the child’s best-interest factors. The Court found seven factors were neutral, five favored Wife, and none favored Husband.

The Court also found the trial court applied the wrong legal standard:

The instruction to maximize parents’ participation does not mandate that the trial court establish a parenting schedule that provides equal parenting time. And the General Assembly has expressly declared that in any proceeding involving custody or visitation of the minor child, the overarching standard by which the court determines and allocates the parties’ parental responsibilities is the best interest of the child. Indeed, despite the additional language added to § 36-6-106(a), another section of our child custody and visitation statutory scheme continues to provide that “neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child.” So the trial court, with its stated emphasis on awarding the parties the maximum participation possible, erred by applying an incorrect legal standard. Moreover, our foregoing discussion of the misclassification of some best-interest factors shows that the trial court’s ultimate decision to award equal parenting time was also based on an erroneous assessment of the evidence or otherwise relied on incorrect reasoning.

The Court vacated the trial court’s ruling, remanded the case for reconsideration, and observed that “the relationship between the parties before us now tends more toward uncooperative than outright hostile and untrusting.”

Source: Smith v. Smith (Tennessee Court of Appeals, Western Section, August 25, 2023).

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