In the case of Hughes v. Hughes, No. M2013-01558-COA-R3-CV (Tenn. Ct. App., Dec. 16, 2014), the Court of Appeals had to decide on co-parenting in a case involving mental instability by one parent and violation of a court order by the other.
Husband and Wife separated in 2011, with Wife filing a complaint for divorce and seeking to be named the primary residential parent of their two children. Several changes occurred during the case while the divorce was still pending. In August, the Wife filed for and received an Order of Protection against the Husband. The Husband was permitted visitation with the children at his parents’ home. In November, the court entered an order that put the children in the care of the Husband, granting the Wife visits every other weekend. The Order of Protection remained in effect and the children were exchanged through the Husband’s parents.
The next February, the Wife filed for a temporary restraining order and asked for the immediate transfer of the children to her custody. She made this request on the grounds that the Husband had failed to allow her visits with the children and had also broken the Order of Protection. A hearing in March granted the Wife’s request and transferred the children to her custody, stating that the Husband’s actions “could have resulted in harm to the minor children.” The Husband’s visits with his children were to be monitored by his parents inside their home.
The divorce trial was held in November. The Husband defended his actions of keeping the children from their Wife. He stated that he was protecting them from Mr. Gaddis, the Wife’s companion, who was restricted from contact with the children under court order. The Wife denied that the children were in contact with Mr. Gaddis, but a private investigator confirmed interaction between Mr. Gaddis and the children. The Wife, in her defense, pointed out the Husband’s erratic behavior might create a dangerous environment to the children. The trial court decided that the Wife would retain custody of the children, with the Husband having visitation every other weekend. Part of the trial court’s concern was based on the Father’s behaviors, including: having gone to a mental health facility in the past; having been diagnosed with depression; and having interactions with co-workers that “would cause a reasonable person to become concerned” about his mental state. Further, Husband left angry and threatening voice mails with local county officials who Father thought hadn’t responded appropriately to his concerns regarding the Wife violating the court order during the divorce proceedings. Husband also contacted the Wife’s employer to accuse her of dating someone who sold and abused drugs.
As part of the trial court’s order, Mr. Gaddis was to have no contact with the children. Two weeks later, the Husband filed a petition for criminal contempt and a petition to modify. He claimed that the Wife had once again put the children in contact with Mr. Gaddis. A hearing was held in February, 2013, and the Wife admitted to the allegations. A new Parenting Plan was not entered, but the judge found the Wife in contempt.
The Court of Appeals found that the trial court properly placed primary residential parenting of children with the Wife based on a best interests determination. Though the Wife lied to the court and violated the court order, the shaky mental stability of the Husband seemed to be a higher risk factor. Since there was no great disparity in the amount of income or living arrangements of the two parties, the mental instability of the Husband placed the Wife as the more capable caregiver. The trial court’s decision to not change the parenting plan despite the Wife’s failure to obey the order was affirmed, as it did not “amount to a change of circumstance so great as to remove custody from the Wife.” Even with the Wife’s failure to obey the order, the decision came down to the dishonesty of the Wife versus the unpredictable behavior of the Husband. Therefore, the Appeals Court upheld the trial court’s decision to allow the Wife retain the original parenting plan.