TN Dad Gets Only 120 Days Parenting Time After Domestic Abuse

Tennessee child custody case summary on parenting time and visitation in divorce.

TN Dad’s Domestic Abuse Taken Into Consideration In Reducing Parenting Time

Catherine Marie Schmalzer Dick v. Douglas Charles Dick – Tennessee divorce visitation and parenting time

The husband and wife in this Tennessee divorce case were married in 2001, and had one child, who was eleven years old at the time of their divorce.  The husband, who was 48, worked as an accounting manager with annual income of about $81,000.  The wife had been a stay at home mother for most of the marriage, but was working as part-time manager of a café and earned about $9 per hour.  She also had income from a trust fund of about $110,000 per year.  In 2011, the husband had been arrested and charged with domestic assault after allegedly trying to choke his wife.  The wife filed for legal separation shortly thereafter, and the husband followed up by filing a petition for divorce.  As part of the interim orders in the case, both parties were prohibited from drinking alcohol in the presence of the child.

The trial court entered a permanent parenting plan naming the wife as the primary residential parent with 245 days of parenting time.  The husband was granted 120 days of parenting time.  The husband appealed a number of property issues, as well as the custody determinations.  In particular, he argued that the trial court had erred in not maximizing the parenting time of both parties and giving the wife final decision making authority regarding education, health care, and extra-curricular activities.  Also, he argued that the trial court should not have included a paramour clause, since the lower court had prohibited either party from having unrelated overnight guests of the opposite sex when the child was present.

On the issue of parenting time, the father argued that the lower court should have equally divided the parenting time.  The appeals court noted that these types of decisions are factually driven, and looked to the factual determinations made by the lower court.

While most of the relevant factors were balanced in this case, the lower court had found that two weighed in favor of the wife.  First, the trial court found that the husband had caused an increase of stress in the household through his actions, including domestic violence.  The appeals court agreed with the lower court that the factors in this case were appropriate for granting the father only 120 days.  However, when the appeals court looked at the actual schedule, the father had fewer than 120 days assigned.  Therefore, it vacated the actual schedule and sent the case back to set a schedule giving the husband his full 120 days.

On the issue of decision making authority, the appeals court noted that the wife was required to consult with the husband, even though she had ultimate authority.  The court noted that because the parties had experienced difficulty in communicating, the grant of authority to the mother was reasonable.

Turning to the paramour clause, the appeals court first noted that there were no specific fact findings supporting this clause.  The appeals court reviewed the evidence and concluded that there were no facts that would specifically support the inclusion of this clause.  Therefore, the court reversed that portion of the order.

After addressing other issues in the case, the Court of Appeals remanded the case to the trial court.

No. M2013-02461-COA-R3-CV (Tenn. Ct. App. July 14, 2015).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Custody Laws in Tennessee.