Paramour Clause in Tennessee: Barker v. Chandler

August 2, 2010 K.O. Herston 7 Comments

Facts: Mother and Father married and had two children. Upon divorce, Mother was designated the primary residential parent (“PRP”) for Daughter while Father was the PRP for Son.  The parenting plan did not restrict either party from having anyone present around the children.  Father remarried.  Mother began a relationship with her same-sex partner, “M.C.”  The parties subsequently modified the parenting plan by agreement for designate Mother as the PRP for both children.  About a year later, Mother and M.C. moved to North Carolina, at which time the parties modified the parenting plan by agreement to designate Father as PRP for both children.  None of these parenting plans contained the so-called “paramour provision” (sometimes called the “morality clause”) restricting the parties from having paramours in the presence of the children.  Several years later, Mother and M.C. returned to Tennessee, at which time the parenting plan was reopened again.  This time the trial court included the following provision, which was now required by local rule: “Any paramour of any parent and that parent are not to spend the night in the same residence when that parent and one of the minor children are present.”  Mother objected, noting that she lived with M.C. and state law prohibited same-sex couples from being married.  The trial court stated, “I think that’s a policy across the state of Tennessee. I don’t know any Judge in this state that does not preclude paramours overnight when the children are present in the home.”  The trial court commented that, “if there’s a reason not to put that in a permanent parenting plan, this will have to come from the wisdom of our appellate courts.”

The order stated that, “as a matter of law, the paramour clause is required by the laws and public policy of the State of Tennessee . . . .” The trial court noted in its order that Mother reserved the right to challenge on appeal the inclusion of the paramour provision based on her view that such a provision is not required as a matter of law and that, in the alternative if such a provision is required, it violates her constitutional rights to equal protection, privacy, and due process.

Mother appealed and got the trial court reversed, the Court of Appeals ruling that “the trial court was not required to include the paramour provision in the permanent parenting plan” and directed the trial court to consider Mother’s argument in light of that finding, considering the best interests of the children.

On remand, a hearing was held.  Mother testified about the tremendous hardship caused by the trial court’s ruling on the paramour provision.  Father did not take a position for or against the paramour provision.  The trial court ruled as follows:

Court finds that though [Mother] found the paramour clause to be inconvenient and had no concerns if her former husband should have a paramour overnight with his children present, the Court finds that the admonition in the other section of the permanent parenting plan is in the best interest of the children.  A paramour overnight, abuse of alcohol and abuse of drugs are clearly common sense understanding that children can be adversely affected by such exposure, as found from the legions of cases in the state of Tennessee.

Mother again appealed and, again, the trial court was reversed. The Court of Appeals stated:

After reviewing the record, we find that the trial court abused its discretion in requiring the paramour provision.  The record is devoid of any evidence whatsoever to support the finding that a paramour provision is in the best interests of the children.  In fact, the record contains evidence demonstrating that a paramour provision is contrary to the best interests of the children. . . .  Finding the record completely devoid of any evidence demonstrating that the paramour provision is in the best interests of the children or that the presence of Mother’s partner in the home has any harmful effect on the children, we find that the trial court abused its discretion.

This case represents a growing trend of greater acceptance of same-sex relationships in Tennessee family law.  With that said, however, this result came after a very fact-specific inquiry as to the children’s best interest.  This case should not be read to stand for the proposition that a “paramour provision” or “morality clause” is somehow violative of one’s constitutional rights.  Although constitutional issues were raised, this case was not decided on constitutional grounds.  It still came down to a detailed analysis of the evidence regarding the children’s best interest.  That is and always should be the overriding concern.

Barker v. Chandler (Tenn. Ct. App. June 29, 2010).

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

Paramour Clause in Tennessee: Barker v. Chandler was last modified: October 28th, 2013 by K.O. Herston

7 People reacted on this

  1. Seriously, this is about the most ridiculous thing I have ever heard. Random lovers, that I may understand and agree with. But what about those who are serious and talking marriage? They are to live seperate, with double the bills(due to living in seperate locals)? This is just crazy. Just take away a few more of our freedoms…land of the free….bull.

    1. I’m not sure what you’re upset about. The trial court was reversed, which means the paramour clause was overruled. Even so, the legal inquiry is focused on what is best for the child, not whether the adults are inconvenienced, pay extra bills, etc. Further, the mother in this case was in a serious relationship but the present state of the law in Tennessee does not permit the mother to marry another woman. Thus, “talking marriage” does not enter into the equation.

  2. […] This case involves a “paramour clause” in which the Court of Appeals issued a Memorandum Opinion, which means the Opinion cannot be cited or relied on for any reason in any unrelated case. Normally I would not consider a Memorandum Opinion to be blog-worthy but decided to include it because of all the interest in paramour clauses following the recent decision in Barker v. Chandler. […]

  3. I have dated the same man for 3 years strait. He is around all the time, when the children are present and when they are not present. He never sleeps in my house when the children are present because I do have the paramour clause in my parenting plan (Tennessee). I asked my ex-husband (our relationship remains very contentious) to make an exemption to this clause if we have seriously dated someone for over a year (which would “grandfather in” his girlfriend and my boyfriend). Those that know me know that I am NOT an inappropriate person, but this clause is causing major issues. If my boyfriend goes with me and my children to my parent’s house in Georgia for the holidays, he has to pay for a hotel down the street. Even though the hotel costs less than $80 a night, this is still a financial burden (especially when we are out of town for several days). If I ever wanted to go on vacation with my children and my boyfriend, we would have to get a separate condo or hotel room. I could go on about this, but I think you get the idea. Neither my boyfriend nor I have much in the way of financial resources so we are not able to afford this type of family vacation. I’m not even sure if we are allowed to take the kids camping even if he and I sleep in separate tents. Could we sleep in an RV all together if he and I clearly slept in separate beds/areas of the RV? The next obvious question is why not marry him, but after the horrible end of the marriage and divorce I went through with my ex-husband I just cannot bring myself to ever marry again. I want this man to be my partner and companion in life; I plan to be with him until I die (I also felt this way before and during my marriage to my ex-husband who turned out to be a chronic cheater and then turned abusive~ mentally and physically). Is there anything at all that I can do to get this clause off my parenting plan in TN or at least have exemptions?

  4. Like the person above, I also have paramour clause in my divorce papers. I some what understand the reason why it is there, however, what i have an issue with is that everytime i have my kids, i have to find a place for my live in girlfriend to go to spend the night. We are in a very serious relationship and are talking about getting married next year. so why do i have still have ask her to leave for the night. After all this is her place as well as mine, she helps pay the bills and lives there with no issues. There are no issues with her and my kids and they are not in any danger at all with her there. I have even asked my ex-wife if we could sleep in sperate rooms while i had my kids, and i still get a no. She has to leave come bed time. what can i do stop this from happening? If i decide to ignor this paramour clause what kind of trouble will i get in? Can someone please give me some advice? Would Barker v. Chandler case work in my favor as well?

    Thanks D

  5. The Courts are using children as an excuse to dictate to us how we are to live our lives. NOW, with that being said, they say “in the best interest of the child”. If it is determined that a paramour staying over night is not a bad influence of the child, then that’s fine. IF the paramour has criminal record, I would question it, but really question the parent who thinks it’s OK….now, for the Courts just to put the clause in with no reason, that’s wrong. If neither parent is involved with another, no reason for the courts to dictate or order it.

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