Facts: Mother and Father, the parents of two children, divorced after 10 years of marriage. When the divorce was filed, the children were three and nearly one.
After the court-appointed child development expert recommended equal parenting time for a temporary parenting plan, the trial court entered a temporary parenting schedule requiring the parties to exchange the children every two days.
Mother took Father’s laptop to a computer expert for forensic analysis and retrieval of deleted files. The analysis uncovered nude and “upskirt” images of Mother and her sister, along with other pornographic images. Mother reported these findings to law enforcement and the Department of Children’s Services (“DCS”), which investigated but took no further action.
Mother then sought an order of protection based primarily on the same allegations. Mother hypothesized that Father could take inappropriate pictures of their children. Father adamantly denied abusing the children or Mother. The mutual parenting supervisor reported no concerns and observed that the children were very happy to see Father and were very comfortable with him. The trial court ordered the parties to resume the equal parenting schedule with supervision of Father’s parenting time by Father’s parents.
Both parties had independent computer experts. The trial court ordered the experts to present a joint report detailing what they agreed on. Both experts agreed there was no evidence that anyone using Father’s computer searched for illegal or underage pornography, nor was any pornography like this found. Father accessed several commercial pornography websites that were known not to display child pornography. Both experts agreed that commercial pornography websites often use words like “teen” and “girl” as descriptors to describe adults between the ages of 18 and 25.
Mother rejected the expert testimony, opining that whether something is child pornography is “in the eye of the beholder.”
Finding no evidence that the children had been affected by these videos and pictures or by the pornography websites, the trial court reinstated the original equal-time schedule and removed the requirement of supervision during Father’s parenting time.
About a month later, Mother revealed that the then 2 ½-year-old daughter complained “her bottom hurt.” Suspecting abuse, Mother contacted DCS and had the child examined by a professional. The examination revealed no abnormalities.
The trial court entered an order of protection as to Mother but dismissed it as to the children.
At the divorce trial, Mother testified she had no evidence Father had made voyeuristic media of anyone other than her and her sister. Nor did she have evidence to support her speculation that he may have recorded her or anyone else with a bathroom camera, shared voyeuristic media with others, or had some as-yet-undiscovered illegal pornography. Mother repeated her claim that Father was a danger to their children.
Father admitted to creating voyeuristic media of Mother and her sister. He also admitted putting a recording device in Mother’s car a few times because he believed she was having an affair. Father described his “despicable” behavior as a misguided reaction to Mother’s strict views on marital intimacy.
A court-ordered psychosexual evaluation of Father yielded a diagnosis of “voyeuristic disorder” with no signs of pedophilia, substance abuse, or other psychiatric illness.
For the second time, Mother revealed a previously undisclosed incident of possible abuse when the son allegedly claimed he had been touched inappropriately at school. She took their son to his therapist and pediatrician, while acknowledging discrepancies in the son’s story. While Mother remained concerned about possible child abuse, she did not claim that she had any evidence that Father physically or sexually abused his children.
The trial court ordered a parenting plan that designated Mother and Father as joint primary residential parents and granted them equal parenting time on a week-on, week-off basis.
Mother appealed.
On Appeal: The Court of Appeals affirmed in part and modified in part.
Equal parenting time. Mother first argued the trial court erred by awarding equal parenting time in contravention of TCA § 36-6-406(a)(2), which states that parenting time shall be limited if the limitation is in the child’s best interest and the court determines that the parent abused the other parent or the children.
The Court found no error with an equal-time parenting plan:
The trial court found no evidence of abuse. Mother insists that this record contains a “mountain of evidence of [Father’s] abuse” of her and others. She points to Father’s voyeuristic activity, the expert testimony that committing a crime in the presence of children constitutes child abuse, and the [trial] court’s findings when it granted her an order of protection. Still, even if Mother is correct on this point, a finding of abuse, standing alone, does not trigger the statutory mandate. Limitation of Father’s parenting is only required if it is in the children’s best interest.
While we are sympathetic to Mother’s desire to ensure the children’s safety, the evidence does not preponderate against the [trial] court’s implicit finding that limiting Father’s parenting time was not in the children’s best interest. The [trial] court acknowledged the expert recommendations that Father’s parenting time should be supervised as a precautionary measure. Yet it recognized that Father had successfully completed several months of supervised parenting time before resuming the current unsupervised schedule. And the court-appointed parenting expert did not recommend going backwards. Most importantly, there was no proof that unsupervised parenting time with Father posed a specific risk of harm to the children.
Based on our review, the [trial] court did not abuse its discretion in fashioning an equal parenting plan. The [trial] court determined that most of the relevant factors weighed equally between the parents. It found that, for the most part, Mother and Father had shared parenting responsibilities before and during the litigation. Both were willing and able to provide for the children’s needs. Each child felt secure and liked being with each parent. The children’s emotional ties to both parents and their extended families were strong. Only the factor related to the parties’ “moral fitness” weighed in favor of Mother. The [trial] court recognized that Father had “engaged in horrendous criminal conduct in taking video and still photographs of his wife and her sister.” This demonstrated a severe lack of “moral fitness.” But despite Mother’s concerns, “there was no evidence either party has abused the children or the other party.”
The Court affirmed the trial court’s equal-time parenting schedule.
Primary Residential Parent (“PRP”) designation. Mother also argued that the trial court erred in designating her and Father as joint primary residential parents.
Tennessee law allows the trial court to designate the parents as “joint primary residential parents” where (1) there is an equal parenting schedule and (2) the parties agree on the joint designation.
Here, the parties had not agreed on the joint PRP designation.
On appeal, Father agreed to name Mother the PRP, so the Court modified the trial court’s parenting plan to make Mother the PRP.
Source: Cotten v. Cotten (Tennessee Court of Appeals, Middle Section, September 2, 2025).
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