Child Custody and Paramour Clause in Tennessee Divorce: Bargmann v. Bargmann

Facts: Mother and Father married in 1994, had two children, and separated in 2008 before divorcing. Since 2006, one child suffering from cerebral palsy lived with the paternal grandparents in Illinois. When the parties separated, Father and the parties’ other child moved to Illinois and lived with the paternal grandparents. At trial, both children, ages 12 and 14, expressed their preference to live with Father.

The trial court named Father the primary residential parent for both children. The parenting plan also included the following “special provision:”

The mother shall not permit her boyfriend or any other person to whom she is not married but romantically involved to spend the night during her exercise of residential time. Neither party is to smoke in the car or house while [Child] is present.

Mother appealed.

On Appeal: The Court of Appeals affirmed and reversed parts of the trial court’s ruling.

Designation of Primary Residential Parent. Mother argued the trial court “awarded de facto custody” to the paternal grandparents and that, consequently, the trial court infringed on her superior parental rights as compared to third parties. The Court disagreed.

The Court begins by noting how appellate courts are reluctant to second-guess a trial court’s parenting schedule determinations and how a trial court’s decision regarding a permanent parenting plan will be set aside only when it “falls outside the spectrum of rulings that might reasonably result from an application of the correct legal standards to the evidence found in the record.” It is not the role of the appellate courts to “tweak [parenting plans] . . . in the hopes of achieving a more reasonable result than the trial court.”

Father testified that he and the children had lived with his parents, but were displaced after flooding occurred in the basement of his parents’ home. Rather than disrupting the children’s sleeping arrangements, Father decided to rent an apartment for himself. Father testified that he sees the children “every day” and that he sleeps on the couch at his parents home on the weekends. According to Father he “lives” with his parents, but he “sleeps somewhere else.” The availability of support from the children’s paternal grandparents is not a factor weighing against Father’s designation as the primary residential parent and does not constitute the grant of custody to the grandparents. To the contrary, the court is specifically directed to consider the “child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities” when determining the primary residential parent and residential schedule.

We have reviewed the record and have determined that the evidence does not preponderate against the trial court’s factual findings with respect to the emotional ties between Father and the children, nor does it preponderate against the finding that he has taken a greater responsibility for performing parental responsibilities. Therefore, we affirm the trial court’s designation of Father as the primary residential parent.

Paramour clause. Mother argued the trial court abused its discretion by including a paramour clause in the permanent parenting plan because there was no evidentiary basis for such a restriction on her parenting time. The Court agreed.

The Court affirms the general principle that custody and visitation arrangements “should interfere with the parent-child relationship as little as possible” out of deference to the fundamental right of a custodial parents to raise their child and the fundamental right of non-custodial parents to visit their child.

The record does not support the restriction imposed by the court on Mother’s exercise of her parenting time. Father did not make Mother’s living arrangement an issue in the proceedings . . . . Father did not include a similar provision in the proposed parenting plan he filed with the court prior to trial, nor did he request that a paramour provision be included in the parenting plan ordered by the court.

The only rationale articulated by the trial court for including this provision was that Mother’s living arrangement was “amoral” and that Mother was setting “a pattern” for [Child] to follow. . . . [T]he “trial court’s personal notions of moral rectitude are no substitute for proof of actual or threatened harm to the children.” In this case, there was no proof that [Child’s] physical, emotional or moral well-being was jeopardized by Mother’s living arrangement. While a provision of this sort might be appropriate in the initial stages of a divorce proceeding, there was no evidence in this record to suggest that a permanent restriction on Mother’s exercise of her parenting time was necessary. Additionally, unlike the provision which precluded both parties from smoking in front of the children, the paramour provision applied only to Mother; we discern no reason for this limitation. Absent evidentiary justification for the limitation on Mother’s parenting time, the court abused its discretion in including the paramour provision.

Bargmann v. Bargmann (Tennessee Court of Appeals, Middle Section, March 22, 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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