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.