Facts: Husband and Wife, the parents of three children, divorced after seven years of marriage. Wife filed for divorce on October 26, 2020. Three days later, Wife obtained an ex parte restraining order prohibiting Husband from contacting her. At a hearing shortly thereafter, the restraining order was changed to allow communications by text message provided they were only about the children.

Shortly thereafter, Wife moved for contempt, alleging Husband had been following her around town, sent her flowers, broke a window in her car and in her basement, and was arrested for assaulting and stalking her friend. Wife also sought and obtained an order of protection.

The opinion provides so, so many details (too many), but suffice it to say Husband continued to terrorize Wife and her boyfriend and say wholly inappropriate things to the children. Trust me, it’s very bad. He also tried to get Wife to sleep with him by using the tried-and-true method of sending her a photo of his erect penis via Facebook Messenger.

The trial court entered a parenting plan awarding Husband zero days with the children. Husband until he hired a psychiatrist to conduct a complete evaluation. After Husband followed the psychiatrist’s recommendations successfully, he could present that information to the trial court and ask for a hearing to change the parenting plan. The trial court opined that “there is no alternative but to do everything possible to ensure the children’s safety.” The trial court noted that Husband “is given the keys to rehabilitation, such that future parental involvement could be possible.” In making this ruling, the trial court expressly said it considered TCA § 36-6-406, which lists various factors that may justify limitations on parenting time.

Husband appealed, arguing the trial court did not supply the legal justification for its ruling. For example, the trial court did not show it considered the best-interest factors in TCA § 36-6-106(a).

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

TCA § 36-6-406(a) provides that parenting time “shall be limited if the limitation is found to be in the best interest of the minor child and if the court determines … that a parent engaged in” certain behavior, including physical or sexual abuse or a pattern of emotional abuse of the parent, child, or anyone living with the child.

After citing this statute, the Court explained its reasoning:

This Court has previously interpreted subsection (a) as mandatory. So too has the Tennessee Supreme Court concluded that a finding of abuse under section -406(a) “necessitates limiting the parent’s residential time with the child.”

Here, Husband’s continuous stalking and harassment of Wife, despite repeated court orders and arrests, clearly constitutes “a pattern of emotional abuse” sufficient to establish that limiting his parenting time is in the best interests of the parties’ children…. Here, we find it difficult to classify Husband’s actions, as he does, as merely past missteps when he exhibits very little sincere remorse for his words and actions toward Wife or the effect his behavior has had on either his relationship with the children or the children themselves. Rather, the evidence presented paints a disturbing portrait of a father who apparently felt no compunction against stalking and harassing his former wife, threatening Wife, her boyfriend, or even Wife’s counsel’s children, despite multiple orders from courts that he should refrain from this conduct. And even when Husband’s actions caused the children to desire a cessation of their relationship with him, he persisted in his wholly inappropriate and arguably criminal conduct. It is clear that Husband did not desire the divorce. But as the trial court cautioned, much of his conduct only worsened his situation, rather than working toward a reconciliation with Wife. The evidence therefore clearly established that Husband engaged in a pattern of emotional abuse against Wife throughout the pendency of this matter. Thus, the trial court did not err in limiting Husband’s parenting time pursuant to § 36-6-406(a).

The Court later refers to subsection (a)’s “mandatory limiting factors” as being substantively distinct from subsection (d)’s “discretionary limiting factors,” both of which let the trial court restrict Husband’s visitation without considering the best-interest factors.

The Court affirmed the trial court’s judgment.

K.O.’s Comment: While I agree with the outcome and would have affirmed the trial court’s judgment, I believe the Court’s analysis of the “mandatory” nature of the -406(a) factors is simply wrong.

It is true, as the Court notes, that the Tennessee Supreme Court and many Court of Appeals’ opinions referred to the -406(a) factors as mandating that parenting time be limited. That is true because the statute used to require that.

But the statute was amended on June 11, 2020, to make the limitations discretionary, not mandatory.

Before June 11, 2020, the statute required that parenting time “shall be limited if the court determines … that a party has engaged in any of the following conduct: ….” The use of “Shall” made the limitation mandatory. For example, see Carr v. Carr and similar opinions linked therein.

However, on June 11, 2020, the statute was changed to add this qualifier: parenting time “shall be limited” when a parent has engaged in the specified conduct “if the limitation is found to be in the best interest of the minor child.” Since that amendment, the statute’s application is discretionary and no longer mandatory, which is a good thing as a matter of public policy.

Notably, Wife filed for divorce in October 2020, four months after the statute was amended. All the opinions the Court cites supporting its conclusion that the limitations are mandatory were issued before June 11, 2020, when the statute required mandatory limitations. The limitations have not been mandatory since then. Therefore, the Court’s suggestion that the statute mandates limitations on parenting time today is wrong.

Source: Cooper v. Cooper (Tennessee Court of Appeals, Western Section, July 22, 2024).

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