To Text or Not to Text: That is the Question

Slanted Thin Banner 0003 Slant Banner White

To Text or Not to Text: That is the Question

            In Brown v. Brown, the Tennessee Court of Appeals recently overturned a decision from the Hamilton County Circuit Court which designated the father as the primary residential parent (“PRP”) of the parties’ one minor child. In Brown, the Court of Appeals found that the trial court abused its discretion by placing too much emphasis on text messaging which took place in the early stages of the parties’ divorce in which the mother insulted the father. 

The mother and father in Brown married in 2011 but, soon thereafter, their relationship began deteriorating. In 2014, the mother found out that she was pregnant. Unable to resolve their differences, in July, 2015 the father filed for divorce. In August, 2015, the trial court held a temporary hearing to establish a temporary parenting plan. The day after the hearing, the court entered a temporary order providing that the child would reside with each parent on alternating weeks, with other visitation caveats built in, as well. Trial took place over three dates in mid- to late-2016 and, in May, 2017, the trial court entered a Final Decree which, in part, designated the father as the child’s PRP. The mother appealed, alleging two issues:

  1. That the trial court abused its discretion in designating the father as PRP; and
  2. That the parenting plan the Court issued was not in the child’s best interests.

          I will deal with the first issue in this blog post: Whether the trial court abused its discretion in designating the father as the child’s primary residential parent.

          Trial courts have broad discretion in matters related to child custody. Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App., 1996). Under Tennessee Code Annotated (“TCA”) 36-6-404, when deciding child custody issues, trial courts must issue a parenting plan which, among other things, designates one parent as the child’s Primary Residential Parent (“PRP”) and the other as the “Alternate Residential Parent” (“ARP”). All custody decisions are made on the best interests of the child. TCA 36-6-106(a). To that end, the statute instructs the trial court to “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 TCA 36-6-106(a). One of those factors, under subsection (2), is “each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship consistent with the best interests of the child.” TCA 36-6-106(a)(2). 

            In Brown, as stated, early on in the parties’ divorce, the mother sent insulting text messages to the father. Specifically, the mother stated that the father was a “shitty parent” and that he was an “idiot.” Roughly 24 months after the father filed for divorce, and roughly 20 months after the parties had been ordered to operate under the trial court’s temporary order, the court issued its final ruling in the case. As part of that ruling, and largely based upon the stated text messages, the trial court named the Father as the PRP to the child and the mother as the ARP, finding that the mother showed little “willingness to facilitate a close and continuing parent-child relationship” between the child and the father. The Court of Appeals took issue with that finding and reversed the trial court’s decision. In doing so, the Court of appeals stated the following:

… We hold that the [trial] court erred by overemphasizing the petty insults that mother directed at father in private communications during the early stages of the divorce. The content of those messages is not probative of mother’s willingness to facilitate and encourage a good relationship between the child and father. Although we respect the trial court’s finding with respect to mother’s demeanor in the August 2015 hearing, that finding is diluted by the court’s admission that mother significantly improved her attitude by the time of trial. The court erred by presuming that mother would seek to undermine the child’s relationship with father absent any evidence that mother had previously interfered with their relationship or threatened to do so in the future. All evidence in the record preponderates in favor of the opposite conclusion – that mother took affirmative steps to facilitate and encourage the child’s relationship with father. To conclude otherwise would be to “resolve the case on a clearly erroneous assessment of the evidence,” which constitutes an abuse of discretion. Newberry, 2018 WL 3058285, at * 3. Brown v. Brown, No. E2017-01348-COA-R3-CV (Tenn.Ct.App., 2018). [Emphasis added].

            So, essentially, what the Court of Appeals instructs us in this case is that the trial courts should NOT overemphasize “petty insults” that divorcing parties direct to one another while their divorce case is pending, especially in its early stages. Instead, when applying factor (2) of TCA 36-6-106(a) regarding whether one parent or the other shows a “willingness and ability … to facilitate and encourage a close and continuing parent-child relationship consistent with the best interests of the child,” trial courts should focus on whether one of the parents presents any evidence that the other parent had previously interfered with his/her relationship with the child, or had threatened to do so in the future. Essentially, trial courts should understand that tension between divorcing parties, especially in the early stages of the divorce, is common. Therefore, the Court states, placing too much emphasis on insults between the parties which do not in any way indicate that party has (1) interfered with the other parent’s relationship with the child in the past or (2) may do so in the future, should be given little weight. This is a cautionary decision by the Court of Appeals because the Court went to the extreme of finding that the trial court abused its discretion by doing so and overturned its decision. So while it is not recommended that you send insulting text messages to your soon-to-be ex-spouse, to do so is not fatal to your custody goals unless you threaten to discourage a meaningful relationship between the other parent and the child, or discuss having done so in the past. 

            My preference: if you text the other parent … BE NICE.

Happy parenting –

Sam Robinson III


Photo credit: