Posted by: K.O. Herston | May 5, 2011

Child Custody and Supervised Visitation in Tennessee: Malmquist v. Malmquist

Facts: After two children and only five months of marriage, Husband and Wife began divorce proceedings, after which

unnecessarily protracted litigation ensued. The parties inundated the trial court with filings over a two-year period, many of which contained alarming but ultimately unproven accusations. After one transfer of the case and the withdrawal of many attorneys [NB: Wife had nine different attorneys!], the parties proceeded to trial during which they presented the live testimony of 30 witnesses and introduced 122 exhibits.

As that would indicate, the factual history is long and complicated. I will not attempt to summarize it here. Suffice it to say, it is beyond bizarre and ridiculous. After a trial, the trial court ruled Husband should be the primary residential parent for the children and, because of her instability and mental health issues, Wife’s parenting time should be supervised. Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

As one would assume from the foregoing, many issues were raised by the parties and addressed by the Court in this 38-page opinion (which I read so you don’t have to–you’re welcome!), including property division, appellate procedure, etc. Of all the issues, the only one of interest, in my judgment, is the trial court’s decision to limit Mother’s contact with the children to supervised visitation.

No hard and fast rules exist for determining which parenting arrangement will best serve a child’s needs. The inquiry is factually driven and requires courts to carefully weigh numerous considerations. Courts favor the right of the alternative residential parent to reasonable parenting time. With that said, courts may limit or eliminate a parent’s unsupervised parenting time if there is definite evidence to show the exercise of that right would jeopardize the child. The best interests and welfare of a child may require the trial court to place limitations on the parenting time of either or both of the parents.

Tennessee Code Annotated § 36-6-406 permits a court to limit a parent’s residential parenting time. It provides, in pertinent part:

(d) A parent’s involvement or conduct may have an adverse effect on the child’s best interest, and the court may preclude or limit any provisions of a parenting plan, if any of the following limiting factors are found to exist after a hearing:

(1) A parent’s neglect or substantial nonperformance of parenting responsibilities;

(2) An emotional or physical impairment that interferes with the parent’s performance of parenting responsibilities as defined in § 36-6-402;

(3) An impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting responsibilities;

(4) The absence or substantial impairment of emotional ties between the parent and the child;

(5) The abusive use of conflict by the parent that creates the danger of damage to the child’s psychological development;

(6) A parent has withheld from the other parent access to the child for a protracted period without good cause;

(7) A parent’s criminal convictions as they relate to such parent’s ability to parent or to the welfare of the child; or

(8) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

The Court referenced expert testimony at trial that Wife’s personality bordered on delusional, showed tendencies to portray herself as a constant victim, and showed prosecutorial tendencies, describing Wife as a person who accused and blamed others coupled with paranoid and bizarre thinking.

We expressly find Wife’s instability, mental health issues, abusive use of litigation to create conflict, refusal to promote a relationship between the children and their father, and attempt to remove the children from the jurisdiction are all such factors adverse to the best interests of the children and which support supervision of her parenting time. We find definite evidence in the record to demonstrate that awarding Wife unsupervised parenting time would jeopardize the children physically and emotionally.

Wife argued that supervised visitation was precluded by Tennessee Code Annotated § 36-6-301, which says:

After making an award of custody, the court shall, upon request of the non-custodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health. . . . If the court finds that the non-custodial parent has physically or emotionally abused the child, the court may require that visitation be supervised or prohibited until such abuse has ceased or until there is no reasonable likelihood that such abuse will recur.

The Court rejected Wife’s argument, concluding:

The trial court granted Wife such rights as will enable her to maintain a parent-child relationship with her children if she so chooses. Although a finding of emotional or physical abuse permits the imposition of supervised visitation under the cited statutory provision, we disagree that restriction of Wife’s parenting time is appropriate only upon such findings. The plain language of Tennessee Code Annotated § 36-6-301 suggests restriction of visitation is appropriate if unsupervised visitation “is likely to endanger the child’s physical or emotional health.” Tennessee Code Annotated § 36-6-406 likewise permits the limitation of any provision of a parenting plan, including the provision related to the residential schedule. In light of our previous conclusion that Tennessee Code Annotated § 36-6-406 applies here, we find ample support for the award of supervised parenting time.

Malmquist v. Malmquist (Tennessee Court of Appeals, Western Section, March 25, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


Responses

  1. [...] holding that (a) there is no substantive difference between the two sets of factors, and (b) the two sets of factors are not an “either/or” proposition or mutually exclusive. To create a differing procedural framework and analysis is unwise and unnecessary, in my opinion, [...]


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