As published in the Sept/Oct 2023 issue of the Tennessee Bar Journal
The Tennessee Court of Appeals has again affirmed and restated that it is well-within a trial court’s discretion under Tennessee Code Annotated § 36-6-406 to place limitations and prohibitions on either or, in some cases, both parents’ ability to consume alcohol during their parenting time.
Given the substantial needs and vulnerability of minor children, it is easy to understand why the Tennessee Court of Appeals has opined that “custody and visitation arrangements are among the most important decisions confronting a trial court in a divorce case.”1 Further, it is well-settled that “[t]he needs of the children are paramount, while the desires of the parents are secondary.”2
There is no question that Tennessee trial courts continue to have broad discretion when determining the details of visitation arrangements and parenting plans, and such discretion is limited only by such factors enumerated in the Tennessee Code and the appropriate application of the same.3
When determining a residential schedule, “a court must first determine whether either parent has engaged in any of the misconduct specified in Tenn. Code Ann. § 36-6-406, which necessitates limiting the parent’s residential time with the child” before it considers all applicable best interest factors.4 The current version of Tenn. Code Ann. § 36-6-406(d)(2023) provides, in pertinent part:
(d) A parent’s involvement or conduct may have an adverse effect on the child’s best interest, and the court may preclude or limit any provisions of a parenting plan, if any of the following limiting factors are found to exist after a hearing:
(3) An impairment resulting from drug, alcohol or other substance abuse that interferes with the performance of parenting responsibilities
In Goughenour v. Goughenour, the Court of Appeals affirmed a Rutherford County trial court’s complete prohibition on either parent drinking alcohol during his or her parenting time.5
The Goughenour parents had one minor child, and there was proof before the trial court that both parents had consumed alcohol in the presence of their child. The trial court determined that the mother had a significant alcohol problem, of which the father complained, even though the trial court also found the father continued to buy alcohol for the mother while advocating this issue to the court. At the time of trial, the trial court found that the mother had voluntarily enrolled in the “BACtrack View alcohol monitoring system” for a period of approximately six months, with no positive tests. The trial court also found that the mother had “diligently performed directives” from the court and complied with a previous order, which required the mother to enroll in and utilize the “Soberlink Alcohol Monitoring System.” In the five months leading up to the three-day trial, the mother submitted to and produced 533 negative tests through said monitoring system.
The trial court entered a permanent parenting plan in which the parties were awarded equal parenting time, naming the father as the primary residential parent. The trial court further ordered that neither party could consume alcohol in the presence of their minor child.6 The father appealed and raised a number of issues, including whether the trial court erred by prohibiting the father’s consumption of alcohol during his parenting time. In support of his position, the father argued there was no evidence before the court “indicating that his alcohol consumption was ‘problematic,’” and that the mother’s counsel “did not make an argument concerning his alcohol consumption.”7
On appeal, the Tennessee Court of Appeals reviewed the record and determined that it was not an abuse of the trial court’s discretion to prohibit both parties from consuming alcohol during their parenting time. Relying on the proscriptions set forth in Tenn. Code Ann. § 36-6-406(d), the court reasoned,
[A] review of the record reflects certain incidents where Father was intoxicated in Child’s presence and was yelling at another individual while both Child and the individual’s children were under his care. This individual testified that, subsequent to this interaction, she and her husband no longer left their children at Father and Mother’s home if only Father was present. In its final order, the trial court found that “Father and Mother have consumed alcohol in the presence of the child and Father continued to purchase alcohol for Mother while, at the same time, advocating Mother was abusing alcohol and had mental issues.”8
In addition to affirming the judgment of the trial court, the Tennessee Court of Appeals also awarded the mother her attorney’s fees on appeal.
The Goughenour opinion is just one of several cases addressing parents’ consumption of alcohol and limitations on the same. In a relatively recent case, Williams v. Williams, a trial court heard “substantial” evidence of a father’s alcohol abuse and entered an order prohibiting the father from “drinking alcohol in excess” while caring for the minor child.9 The trial court also ordered the father to “perform a breathalyzer test every time he picked up the [c]hild for co-parenting time,” and “to continue alcohol recovery treatment.”10 On appeal, the court affirmed the trial court’s parenting plan, but found the trial court erred by not restricting the father’s drinking entirely during his parenting time “in order to ensure the safety of the [c]hild.”11 Given Tennessee courts’ obligation and genuine desire to protect minor children, not to mention current case law, domestic litigants should be advised that pointing the finger at the other parent could very well result in an equal prohibition or limitation on certain privileges, like drinking alcohol, during their parenting time. Further, it appears that the mere absence of alcohol or even drug-related incidents on a litigant’s record will certainly not be enough to deter a reasonable trial court from exercising its discretion under Tenn. Code Ann. § 36-6-406. |||
MARLENE ESKIND MOSES is a partner at Gullett Sanford Robinson & Martin, and formerly was manager and founder of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is the immediate past president of the International Academy of Matrimonial Lawyers and is on the executive committee of the American College of Family Trial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
ANSLEY OWENS TILLETT practices law in Middle Tennessee and is a graduate of Belmont University College of Law. Tillett is part of the family law practice at Gullett Sanford Robinson and Martin PLLC in Nashville and co-chair of the Nashville Bar Association’s Domestic Relations Committee.
NOTES
1. Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996).
2. Id.
3. See Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). “A trial court abuses its discretion in establishing a residential parenting schedule only when the trial court’s ruling falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.” Armbrister at 687 (internal quotations omitted).
4. Armbrister v. Armbrister, 414 S.W.3d 685, 696 (Tenn. 2013) (emphasis added).
5. Goughenour v. Goughenour, No. M2022-00297-COA-R3-CV 2023, Tenn. App. LEXIS 183, 2023 WL 3269661 (Tenn. Ct. App. May 5, 2023).
6. Goughenour, 2023 Tenn. App. LEXIS 183, *1.
7. Id. *10.
8. Goughenour v. Goughenour, 2023 Tenn. App. LEXIS 183, *12
9. Williams v. Williams, No. E2021-00432-COA-R3-CV, 2022 Tenn. App. LEXIS 137 (Tenn. Ct. App. Jan. 18, 2022). The court’s provision provided specifically that the father “not abuse alcohol around the child by drinking to excess (at or over the legal limit of .08%) around the child.” Id. at *38. See also Rogers v. Rogers, No. E2002-02300-COA-R3-CV, 2003 Tenn. App. LEXIS 494, 2003 WL 21673678 (modifying a trial court’s parenting plan to eliminate a provision which allowed the father to consume alcohol during his parenting time after the first six months of visitation when there was “substantial evidence of the [father’s] problems with alcohol.”).
10. Williams v. Williams, 2022 Tenn. App. LEXIS 137, *21. Interestingly, the trial court made a specific finding that the father “hadn’t had alcohol interrupt his work as far as any testimony [ ] heard,” and that he “hadn’t had any public intoxication charges, [or] any DUIs.” Williams v. Williams, 2022 Tenn. App. LEXIS 137, *33
11. Williams v. Williams, 2022 Tenn. App. LEXIS 137, *37 (emphasis added).