Tennessee Appeals Court Says Best Interest of Child Overrides Paramour Restriction

A unanimous panel of the Tennessee Court of Appeals ruled on September 18 that the Gibson County Chancery Court erred in holding that it was required to include an "overnight paramour" provision in the parenting plan governing child custody and visitation for a lesbian mother who lives with her same-sex partner, in the absence of any finding that such a restriction is necessary for the best interest of the teenage children involved in the case. The decision for the court by Judge Holly M. Kirby in Barker v. Chandler, 2009 WL 2986105, skirts potential constitutional problems by finding that Tennessee statutes and Supreme Court precedents make the best interest of the child paramount to any other considerations. The "paramour" provision forbids the parent from having an unmarried adult partner in their house overnight while their child or children are there.

The parents were married in February 1992, and the son and daughter were born over the next few years. Mother instituted divorce proceedings after discovering that Father was having an extra-marital affair. Under the divorce decree of 1998, Mother became primary residential parent for the daughter and Father was designated as primary residential parent for the son, but parenting roles switched back and forth over the next few years as Father acquired a paramour and then a wife and Mother acquired a live-in same-sex partner.

The present suit stems from the most recent modification of custody, when the parties could not agree on residential custody and the court required the parties to make themselves able to a court-appointed psychologist, Dr. Pickering. The doctor recommended that the original disposition be resumed, the son staying with Father and the daughter with Mother. Pickering found that the daughter’s relationship with her step-mother, Father’s new wife, was not particularly good and was causing emotional problems for her, supporting the Mother’s argument for having the daughter live with her, despite the usual judicial preference to keep siblings together. Pickering also specifically found that Mother’s same-sex partner and daughter had a positive relationship. "He cited research showing no adverse impact on children living with parents with same-sex partners, and he indicated that the trial court would need to address issues involving the cohabitation of Mother and [her partner.]," writesJudge Kirby for the court of appeals. While noting that the "paramour clause" was found in "most visitation orders" in Tennessee, Dr. Pickering wrote in his report to the court, "current results do indicate [she] is a positive parent surrogate for both children, and has appropriate relationships with them both."

At the hearing on the parties’ motions, the parties agreed to the disposition recommended by the psychologist, and Mother argued against inclusion of the paramour clause, which otherwise would be routinely included in the standard form adopted under the Tennessee courts’ local rules. The trial court insisted that the "paramour provision" had to be in the family plan, because it was a part of the standard rules. "I’m not saying that [Mother] and [her partner] can’t sleep together," wrote Chancellor George Ellis. "Apparently, Dr. Pickering found [her] to be a positive influence. The issue is paramour overnight." Ellis found that this was the state-wide policy. "I don’t know any Judge in this state that does not preclude paramours overnight when children are present in the home," and opined that any change in this "will have to come from the wisdom of our appellate courts."

Exercising such wisdom, the court of appeals found that exalting a standard provision in a form over the best interest of children would be contrary to the state’s family law policy. "Despite the important considerations underlying Local Rule 23," wrote Judge Kirby, "such a local rule cannot bind the hands of a trial judge to make decisions that are in the best interest of the children who come before the court. Tennessee’s courts have long held that the best interest of the child is the single most important factor in matters involving parenting time and visitation," she continued, quoting from an earlier decision of the court of appeals that characterized best interest of the child as "the polestar, the alpha and omega."

In this case, Kirby pointed out, the trial court included the paramour provision not on the basis of some finding that it was necessary to protect the children, but rather just because the court felt constrained by the local rule to do so. "We find as a matter of law that this conclusion was erroneous. We make no judgment regarding whether inclusion of the paramour provision in this parenting plan serves the children’s best interest in this case, and we make no decision as to whether Daughter’s best interests are served by having Mother or Father designated as her primary residential parent," Kirby wrote, referencing the issue that had been the sticking point that had precluded an amicable agreement between the parents. Rather, said the court, these were issues to be decided by the trial court, unconstrained by any necessity to follow the local rule and require the paramour clause without any finding that it was needed.

The trial court’s decision was reversed and the case was sent back for a determination of best interests of the children without reference to Local Rule 23.

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