Discovery and Visitation in Tennessee Divorce: Shaw v. Shaw

Facts: During divorce proceeding, Child allegedly accused Father of sexual abuse. The Department of Children’s Services investigated and found the allegations to be unfounded. Mother also found video cameras had been surreptitiously installed in Child’s bathroom.

Father claimed that he installed the cameras because many times when he would call to speak with the children at night, he was told by Mother that they already were in bed. Father claimed he installed the cameras so he would know when the children were getting ready for bed and could determine if Mother was being truthful.

Law enforcement declined to prosecute Father for any crime. Father sought to obtain copies of Child’s psychological counseling records but the counselor–acting at the direction of Mother’s attorney–refused. The trial court ruled Father was not entitled to the records.

Father also sought to take Child’s deposition (Child was 12 years old). Again, the trial court refused to permit it.

Finally, Father sought visitation with his three children, including Child. The trial court refused both supervised or unsupervised visitation.

Father sought permission for an interlocutory appeal. Again, the trial court refused. Father then sought a Rule 10 extraordinary appeal, which the Court of Appeals granted.

On Appeal: The Court of Appeals reversed the trial court on each issue.

Child’s Records. The Court notes that the “Parental Bill of Rights” at Tenn. Code Ann. § 36-6-110(5) provides that either parent has “the right to receive copies of the child’s medical records directly from the child’s doctor or other health care provider” unless the trial court finds the child’s best interest requires otherwise.

The obvious intent of the foregoing statute is to ensure that the non-custodial parent is able to obtain relevant documentation and information from his or her child’s health care providers. In other words, the custodial parent cannot intentionally thwart the non-custodial parent from obtaining this important and necessary information. There is nothing in the statute to suggest that the General Assembly intended for the non-custodial parent’s rights to be any different simply because the health care provider is providing psychological care to the child.

Regarding Child’s best interest, the Court said: “We again strongly emphasize that based on the record before us, there have been no criminal charges ever filed against Father. Unless and until that happens, Father is on the exact same footing as Mother with respect to being entitled to his child’s counseling records.”

Child’s deposition. Regarding the denial of Father’s request to depose Child, the Court held,

Under Tenn. R. Evid. 601 . . . no one is automatically barred from testifying simply because of age or mental status. So long as a witness is of sufficient capacity to understand the obligation of an oath or affirmation, and some rule or statute does not provide otherwise, the witness is competent. . . . There is nothing in the record to support an allegation that . . . the subpoena was unreasonable or oppressive. Likewise, there is nothing in the record to indicate that [Child] did not or could not understand the obligation of an oath or otherwise was not competent. Accordingly, the Trial Court’s judgment denying Father’s request to depose [Child] is vacated and, on remand, Father shall be permitted to depose [Child] consistent with the provisions of the Rules of Civil Procedure.

Visitation. Relying on Smith v. Dorsett, which I blogged about here, the Court concluded,

At the present time, the allegations of sexual abuse have not been substantiated. Although no criminal charges have been brought against Father with respect to the cameras, their installation alone is, at the least, very troubling, especially when considering where they were placed.

Based on Father’s admitted inappropriate conduct with respect to the cameras, we believe that while it is in the children’s best interest that visitation with Father be resumed immediately, such visitation should be supervised at this time.

Shaw v. Shaw (Tennessee Court of Appeals, Eastern Section, January 20, 2011).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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