Mother and Father had a brief relationship, which ended with the Mother becoming pregnant. Father lived in New Jersey, and Mother lived in Tennessee. The parties then married, but they separated only eight weeks later. From that point forward, Father continued living in New Jersey and Mother in Tennessee. Father returned to TN for 10 days for the birth of the child. The Mother filed for divorce when their child was six months old.
Evidence showed that Mother had at least 5 extramarital sexual relationships during this short-term marriage, some of which occurred while the child was in the Mother’s care. The Mother became involved in a brief live-in relationship with a married man, and Mother tattooed that man’s name on her pubic bone. She then sent a photo of this tattoo to the Father. The Mother posted pictures of the child with this man online and even sent pictures of the child and another paramour to the Father. The record indicates that the Mother sent approximately a dozen explicit photographs, either alone or with her pregnant friend, to the Father and other men.
Mother’s paramour testified that he saw her smoke marijuana with the children’s babysitter while the children were inside.
Mother had a string of different home, bouncing around from home to home and living with others. At the time of trial, Mother was residing with her father and stepmother, while Father had his own apartment with a room for the child.
For some period during the parties’ separation, the Mother did not have a car. She received financial help from one of her paramours to purchase a car and a computer.
Father presented a recording of a telephone conversation in which Mother was driving with the child in the back seat and she was cursing and “shrieking” at Father while he begged her to put on a seat belt and to stop speeding with the child in her vehicle.
Around the same time, Father came to Tennessee to visit with the child for five days, but Mother only allowed him to see the child for one hour.
After filing for divorce, the Mother decided to travel to New Jersey with the child without giving the Father any sort of notice. On the way, she began sending text messages to Father, stating that she wanted the three of them to spend the weekend together. When Father did not answer, she threatened to go straight to the beach house, where Father was spending time with family. She arrived at the Father’s home and began banging on the door, shouting, cursing and demanding that someone open the door. Father and his family did not open the door because of the Mother’s erratic behavior, and instead called the police. When the officers arrived, they observed Mother banging and kicking the back door and yelling and cursing. Father then came outside and saw the child in the Mother’s car. He took the child and brought her into his home. Father refused to return the child to Mother that evening. Mother was not taken into custody, but she agreed for the child to stay with Father for one night. The next day, Father still refused to return the child. The third day the child was in the Father’s care, Mother filed a motion with the Tennessee court, asking the court to issue an injunction, requiring Father to return the child. Mother also simultaneously filed a petition in New Jersey, asking for the same relief. The New Jersey court ordered Father to return the child.
Mother argued that she should be designated the Primary Residential Parent, claiming she had been the child’s primary caregiver for the child’s entire life. The Father also requested the to be Primary Residential Parent, claiming he would provide a more stable life and the child would be safer with him.
The trial court designated the Mother as Primary Residential Parent, without making any factual findings or explanation of their decision. Father was awarded parenting time with the child during every 3rd weekend of the month. Father appealed.
Trial courts, when establishing an initial parenting schedule, must consider what is in the best interest of the child, and the trial court must engage in a “comparative fitness” analysis to determine which of the available custodians is more fit to care for the child.
Tennessee Code Ann 36-6-404(b) sets forth factors the court must consider when designing or approving a parenting plan as part of divorce proceedings.
The appellate court determined that the Mother consistently exercised poor judgment and was less likely than Father to provide the child with a safe, secure and stable home.
The court also noted that Mother realized her texts to men were inappropriate, but that it took child custody litigation for her to come to this realization. “When this record is considered as a whole, the evidence clearly preponderates in favor of a factual finding that Father is the more comparatively fit parent . . . and that [Child’s] best interests are served by designating Father as the child’s primary residential parent.” The appellate court found that the trial court abused its discretion in designating Mother as the Primary Residential Parent and reversed that decision. Accordingly, Father was granted custody of the child.
The question is whether the court should have considered mother’s sexual acts, as it is questionable whether these acts had any causal affect on mother’s ability to parent the child. Curtis v. Hill 215 S.W.3d 836 states that: “[P]arenting decisions should not be intended or designed to reward parents for prior virtuous conduct nor to punish them for their human frailties, past missteps or perceived moral shortcomings in the absence of demonstrated adverse consequence to the children”. Tennessee Appellate Courts have also recognized that sexual indiscretion does not, by itself, disqualify a parent from being awarded custody, but it may be relevant if it involves the neglect of the child.
In this case, the record is full of examples of the Mother’s emotional instability and chronic poor judgment, not simply sexual indiscretion. These acts provide enough support for the Appellate Court’s decision to reverse the trial court.
If you are concerned about decisions made by your child’s other parent, and you wish to modify a custody arrangement or to ask the court to designate you as the child’s Primary Residential parent, contact our office today to discuss your concerns during a free consultation. We serve the following cities (not an exclusive list): Brentwood, Franklin, Fairview, Columbia, Clarksville, Nashville, Antioch, Dickson, Gallatin, Murfreesboro, Smyrna, Mt. Juliet, Nolensville, Spring Hill, Thompson’s Station, Ashland City, Hermitage and Donelson.
