Facts: Mother and Father are unmarried parents of Child. Father filed to establish a permanent parenting plan when Child was about 15 months old, and Mother counter-petitioned for child support. The parents agreed to a temporary parenting plan under which Father exercised parenting time every other weekend and alternate Wednesday nights, and Father paid temporary child support.
When Child was two and a half years old, she was diagnosed with autism spectrum disorder. A clinical psychologist at Vanderbilt University Medical Center recommended applied behavior analysis (“ABA”) services and intensive speech therapy and provided the family with a list of recommended providers. Despite their differences, Child received intensive speech therapy for five months and daily ABA therapy for nine months. The family also participated in virtual developmental therapy sessions until Child’s third birthday. Both parents acknowledged at trial that Child improved immensely with therapy.
The parents struggled to agree on Child’s care and schooling. Father opposed using the Tennessee Early Intervention System, a free government program Mother preferred, questioning whether it was the best option because it only referred families to a limited group of providers. Mother objected when Father independently contacted service providers not on the recommended list. Father chose an in-person speech therapy group because he believed it would be more effective for a toddler than the virtual option and arranged for an in-home ABA provider when none of the recommended center-based providers were available. Despite her objections, Mother ultimately went along with Father’s plan, and Child thrived.
Around Child’s third birthday, Mother obtained three educational assessments. The assessors did not recommend intensive interventions and instead recommended that the Child attend a regular preschool to increase social communication and social skills. Father wanted preschool, and Mother disagreed, believing continued therapy was needed.
Father placed Child on preschool waiting lists, and when a spot became available, both parents toured and liked the program. Mother conceded she liked the teachers, the facility, and the curriculum, and she was relieved that some teachers had experience teaching autistic children, but she did not complete her part of the application process.
The trial occurred on scattered dates over the course of a year. Mother had been Child’s primary caregiver under the interim plan, and Father exercised the interim schedule. Father asked the court to name him primary residential parent and substantially increase his parenting time, while Mother asked the court to make the temporary plan permanent, emphasizing Child’s need for consistency.
Mother also questioned Father’s emotional and moral fitness, describing angry outbursts and attempting to introduce evidence of sexual harassment allegations. Some witnesses noted Father raised his voice when angry and did not always treat therapists with respect.
The juvenile court adopted a permanent parenting plan with equal parenting time. Because the parents could not work together on Child’s autism-related care, the court gave Mother sole authority for non-emergency health care decisions. The court gave Father sole authority over educational decisions due to communication difficulties and Mother’s reluctance to approve appropriate school programs.
Mother appealed, arguing the juvenile court erred by ordering equal parenting time and by giving Father sole educational decision-making authority. Mother also challenged the exclusion of evidence she contended was relevant to those issues, and she raised issues related to child support and attorney’s fees.
On Appeal: The Court of Appeals affirmed the juvenile court’s ruling.
Under Tennessee law, an initial custody determination is governed by the child’s best interest, considering all relevant factors listed in TCA § 36-6-106(a). Courts must fashion a residential schedule that encourages each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s circumstances. The statute does not create a presumption or preference in favor of equal parenting. Rather, it directs the court to maximize both parents’ participation in the child’s life consistent with the statutory best-interest factors, the location of the parents’ residences, and the child’s need for stability. Trial courts must engage in a fact-intensive, individualized analysis of each parent’s comparative fitness and the statutory best-interest factors.
Continuity is an important factor in the best-interest analysis, but it does not automatically override all other considerations. Courts may also consider each parent’s moral fitness, but only as it relates to their ability to parent the child. When creating a permanent parenting plan, the court must allocate decision-making authority for major decisions by evaluating factors such as each parent’s history of making decisions for the child and their demonstrated ability and desire to cooperate. If parents cannot agree on important decisions, awarding sole decision-making authority to one parent may be appropriate to serve the child’s best interest and reduce harmful conflict.
Continuity. Mother argued the temporary plan should become permanent because Child was thriving under it and it had been in effect for almost 4 years. The Court of Appeals rejected this argument, holding that equal parenting time was within the trial court’s broad discretion:
Continuity is an important factor in the best interest analysis. But it does “not trump all other considerations.” Here, the court recognized that continuity favored Mother. Still, based on its consideration of other relevant factors, the court determined that it was in the child’s best interest to establish a different parenting schedule in the permanent plan.
Moral Fitness. Mother argued that Father’s past misbehavior made him less suited to co-parent and attempted to introduce evidence of sexual harassment allegations against Father. The trial court excluded that evidence, and the Court of Appeals agreed.
Tennessee law allows consideration of a parent’s moral fitness only as it relates to their parenting ability. Behavior that does not impact the child or the parent’s capacity to care for the child is generally not relevant to the best-interest inquiry. The Court of Appeals found that Mother’s proffered evidence of Father’s misconduct had no bearing on his parenting. Because Mother failed to connect the alleged misconduct to Father’s care of the child, the evidence was properly excluded:
Evidence of sexual misconduct may be relevant to the comparative fitness analysis in a custody battle. But the misconduct must have some relationship with parenting. Mother’s proof did not meet that standard. While we do not condone Father’s behavior, it did not relate to his parenting ability.
Decision-Making Authority. Mother also challenged the allocation of decision-making authority, arguing she should have been awarded authority over both education and non-emergency health care because those issues can be intertwined for an autistic child.
The evidence showed that despite the child’s tremendous progress and three separate expert recommendations to start preschool, Mother was unwilling to accept that the child could succeed in a regular school setting. She failed to enroll the child in a preschool program even though she liked the teachers, the facility, and the curriculum, and she did not pursue a comparable alternative. Given the parents’ persistent communication difficulties, the Court of Appeals found the trial court acted within its discretion by splitting decision-making responsibilities:
The court gave Father the primary authority to make educational decisions based on the parents’ communication difficulties and Mother’s reluctance to approve appropriate schooling programs. The evidence does not preponderate against these findings. … Mother’s fear of a future problem is an insufficient reason to second-guess the court’s decision. If the court’s allocation proves unworkable, … she may seek modification.
For these reasons, the Court affirmed the juvenile court’s judgment.
K.O.’s Comment: First, the opinion repeats what Tennessee lawyers already know: continuity matters, but it does not trump everything. If a judge finds both parents can meet the child’s needs and one parent is unnecessarily rigid or dismissive of reasonable recommendations, the temporary schedule is not a safe harbor.
Second, custody cases are not character trials. The moral fitness factor is not a license to litigate every ugly allegation that does not affect parenting. If you cannot tie misconduct to the parent’s ability to care for the child, do not be surprised when the judge keeps it out, and do not be surprised when the Court of Appeals affirms that call.
Third, when multiple experts recommend a course of action for your child, ignoring those recommendations without a compelling reason will not play well in court. Mother’s refusal to enroll the child in preschool despite three separate assessments recommending it was a significant factor in the juvenile court’s decision. The lesson is straightforward: listen to the experts, or be ready to explain to the judge why you did not.
Source: Livingston v. Logue (Tennessee Court of Appeals, Middle Section, May 6, 2026).
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