Allegations of domestic violence or abuse are serious, especially in divorce and child custody cases. A March 1, 2018 decision from the Tennessee Court of Appeals reveals some of the legal considerations and issues that may be involved. The parties in the case had one child together during their marriage. After a trial, the court declared the parties divorced and entered a final order designating the father as the primary residential parent. On appeal, the mother contended that the trial court failed to properly consider the father’s history of domestic violence and abuse against her.
In Tennessee, the final order in a divorce action must incorporate a permanent parenting plan for the parties’ minor children, including a residential schedule and designation of a primary residential parent. In developing the plan, the trial court must consider certain statutory factors and any relevant statute. In particular, TCA 36-6-406(a)(2) provides that a parent’s residential time must be limited if the court finds, based upon a prior order or other reliable evidence, that the parent has engaged in physical or sexual abuse, or a pattern of emotional abuse, of a parent, child, or other person living in the household.
In the case, the trial court found that the father committed domestic violence against the mother. Although the incidents were not reported to the police, they were corroborated by the testimony of several witnesses, who stated that they saw the mother’s bruises, black eyes, and busted lip. The court also considered the fact that the mother had once left the child in a hot car and was currently living with a man who had been convicted of a felony, among other considerations. Ultimately, the trial court found that while it was greatly concerned with placing a child with a man who had engaged in physical abuse, under the totality of the circumstances, it was in the child’s best interest that his father is designated as the primary residential parent.
The appeals court, however, could not determine the extent to which the trial court took the requirements of TCA 36-6-406(a)(2) into account when developing the residential parenting time schedule and designating the father as the primary residential parent. Namely, it was unclear whether it had considered the requirement to limit the parenting time of a person who committed domestic violence. Nor did it appear that the trial court considered the testimony of the mother’s doctor, who had opined that the mother’s fear of the child’s father had led her to leave the home and move to a different county. Consequently, the court’s ability to review the decision was limited by the lower court’s failure to identify and apply the appropriate legal principle required under TCA 36-6-406. The matter was therefore remanded back to the trial court to make appropriate findings in light of the statute.
At Martin Heller Potempa & Sheppard, our Nashville family law attorneys are dedicated to protecting the rights and welfare of our clients during a divorce. If you are struggling with domestic violence, child support payments, adoption, or another family issue, we can provide trustworthy legal advice. Schedule an appointment with one of our divorce lawyers by calling our office at (615) 800-7096 or contacting us online.