As published in the July/August 2022 issue of the Tennessee Bar Journal
For some time now, it has become increasingly common for courts adjudicating divorce and custody actions to grant equal, or substantially equal, parenting time to both parties with minor children. This is, in part, an indication that trial courts are closely adhering to the Tennessee Code’s guidance on determining child custody outlined in Tenn. Code Ann. § 36-6-106. Notwithstanding this trend, courts have also been mindful of the instruction in Tenn. Code Ann. § 36-6-101(a)(2)(A)(i) which states “neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established” but instead has been closely following the mandate that “the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child.” This article will review what deference, if any, are equal or substantially equal divisions of parenting time being given when taken up on appeal and what standards are the appellate courts using to affirm, or reverse, these critical decisions regarding the lives of the parties and their children.
When making its determination about the custodial arrangement for the minor child or children, the trial court is mandated, pursuant to Tenn. Code Ann. § 36-6-106, that “the determination shall be made on the basis of the best interest of the child.”1 With that requirement in mind, the trial court further must “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection.”2 The remainder of the section provides a non-exhaustive list of the factors that a court shall consider when making that determination which focuses on the relationship with and the ability and willingness of each parent to provide for the minor children.3
As noted, equal or substantially equal parenting time is much more the norm, but an initial review of recent appellate decisions relating to trial court rulings that either grant or deny the parties’ request for equal parenting time appear to be all over the map. However, a closer look demonstrates that the appellate courts have reinforced the principle that the decision to make the parenting time equal still must follow basic premise that the primary concern is the best interest of the child and, secondarily, the statute instructs the trial court to attempt to provide both parties with the maximum amount of time with their child after their divorce or separation. Lastly, in order to obtain relief, an appealing party must demonstrate an abuse of discretion on the part of the trial court in making this determination and, while not insurmountable, this remains a high burden for the appellant to meet under appellate review.
In 2021, the Court of Appeals reviewed the decision of the Decatur County Circuit Court wherein the trial court had granted the divorcing parties equal parenting time in the case of Owens v. Owens. The mother challenged this decision at the appellate level and relied, primarily, on the argument that the trial court ignored the best interests of the minor children in making this determination because the record was replete with evidence that the relationship between the father and their son was a poor one.4 Ultimately, the Court of Appeals agreed with the mother and reversed and remanded the case for further consideration on this issue because it determined “the findings of the trial court on this issue completely disregard the testimony of [son], as well as other witnesses, and do not address any of the negative aspects of Husband’s parenting.” The court then ordered “entry of a parenting plan in which Wife is named primary residential parent and Husband is awarded reasonable, though not equal, visitation.”5 Despite the trial court’s initial award of equal time based on one portion of Tenn. Code Ann. § 36-6-106(a), it determined that the best interests of the child clause was superior in importance.
Starting from a similar position on appeal, and arriving at a similar result, is the case of Rajendran v. Rajendran ruled on in 2020. In this matter, the trial court determined that it would award parties equal parenting time with their minor child as part of its decree. The matter was appealed by the mother and neither party appeared satisfied with the trial court’s ruling.6 On appeal, the Court of Appeals reviewed the factors outlined in Tenn. Code Ann. § 36-6-106(a) and made the determination that it was not in the best interest of the child for the parties to have equal parenting time. The court premised its ruling on the failure of the parties to be able to communicate and co-parent stating “it appears to parties’ continuing lack of trust and inability to cooperate are barriers to the joint parenting arrangement ordered by the trial court.”7 Since the parties were unable to cooperate with one another to rear their child, the Court of Appeals determined the trial court had abused its discretion in determining they could. The Court of Appeals remanded the matter to the trial court with instructions to deem the mother the primary residential parent while still granting the father “liberal, but not equal, visitation.”8
Following on the heels of the Rajendran case, and based in part on its holding, the father in Smallbone v. Smallbone, after the trial court had awarded substantially equal parenting time to the parties but making the mother the primary residential parent, argued that because of the continuing difficulties between the parties in cooperating as well as a misreading of the Tenn. Code Ann. § 36-6-106(a) on the part of the trial court led to an incorrect determination and, citing Rajendran and its holding that the parties’ animosity made equal parenting time untenable, he asked to be awarded substantially more time than the mother.9 The Court of Appeals disagreed stating that in this case, unlike in the Rajendran case, the trial court had conducted a proper analysis of the best interest factors and that supported the contention that equal parenting time was warranted and affirmed the trial court’s ruling.10
In still another case that was decided earlier in 2022 where, contrary to the above cases, the trial court elected not to grant substantially equal parenting time to the parties, the Court of Appeals reversed the trial court in part, but applied the same general principles we have seen above. In the case of Woody v. Woody, the trial court had determined, after hearing the proof, that the factors in Tenn. Code Ann. § 36-6-101(a) weighed in favor of the mother and it was in the best interest of the child to make the mother the primary custodial parent which also gave her substantially more time than the father. In reviewing this issue, the Court of Appeals determined that, based on an extensive review of the record created to determine the best interests of the child, the trial court had “erred in much of its best interest analysis” and further “[i]n light of our consideration of the best interest factors and the statutory instruction to maximize each parent’s time, we also conclude that the trial court erred by failing to maximize Father’s parenting time” additionally.11
After reviewing these cases, it seems clear that the Court of Appeals, and to a large extent the trial courts, are taking the instruction to maximize the parenting time of each party as much as possible; however, the central tenet of the determination is still the best interests of the child. Furthermore, it appears that the courts are linking the two issues directly and indirectly. If the best interests of the child show a strong relationship with each parent, in most cases equal or substantially equal time will be an achievable goal. If the factors do not support the best interest of the child based on one party’s conduct, then equal time has less justification and, often, cannot be supported. A practitioner should keep this in mind when advocating for equal time for a client: the best interest of the child is superior to the parent’s right for parenting time. This is spelled out in statute and supported routinely in case law.
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 currently serving as president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.
MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.
NOTES
1. Tenn. Code Ann. § 36-6-106(a)
2. Id.
3. Tenn. Code Ann. § 36-6-106(a)(1)-(15)
4. Owens v. Owens, E2020-01407-COA-R3-CV, Pp. 18-19.
5. Id. at 19.
6. Even during the pendency of the appeal, the father motioned the custodial court to amend its decree to give him additional time with the minor child over and above the equal time each party already enjoyed.
7. Rajendran v. Rajendran, M2019-00265-COA-R3-CV, P. 16.
8. Id.
9. Smallbone v. Smallbone, No. M2020-01556-COA-R3-CV, Pp. 7-8.
10. Id. at Pp. 8-9.
11. Woody v. Woody, No. E2020-01200-COA-R3-CV, P. 27.