Posted by: koherston | September 12, 2011

Denial of Visitation in Tennessee Divorce: Melvin v. Melvin

Facts: The parties’ divorce trial involved disputes about custody and visitation issues. After hearing the evidence, the trial court found Father called Mother ugly names, belittled her, and made inappropriate demands.” The trial court also stated that it believed Father “has an attitude of superiority towards [Mother] and all women in general.” The trial court found the children had observed this behavior and that “the children appeared very cold toward their father and they had no problem telling their father they did not want to see him at all.” The trial court stated that “the children expressed their feelings that at this time they do not feel safe and do not trust their father because of his behavior.” This behavior included Father’s unilateral decision to secretly have the children tested at Sylvan Learning Centers and to have the parties’ daughter DNA tested. The trial court designated Mother as the primary residential parent, denied Father any visitation rights, and ordered Father to have no contact with the parties’ children. Father appealed.

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

A parent’s residential time with a child shall be limited if the court determines that a parent’s involvement or conduct may have an adverse effect on the child’s best interest. Tennessee Code Annotated § 36-6-404(a)(3) commands the trial court to “[m]inimize the child[ren’s] exposure to harmful parental conflict.” Tennessee Code Annotated § 36-6-406(d) says the court may preclude or limit any provisions of a parenting plan if, after a hearing, any of the following limiting factors are found to exist:

(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.

In the absence of extreme circumstances, however, the law is clear that the non-custodial parent be awarded visitation reasonably sufficient to maintain the parent-child relationship. Thus, the least restrictive visitation limits generally are favored in order to encourage the parent-child relationship. The termination of all visitation has the practical effect of terminating the parent-child relationship. Accordingly, it must be supported by specific findings that visitation by the non-custodial parent will result in physical, emotional, or moral harm to the child.

On appeal, Father acknowledged that his behavior, including remarks made to and about Mother, was less than exemplary. After reviewing the record, however, the Court determined it did not support the complete denial of Father’s rights to visit his children.

There simply is no evidence that [Father] has inflicted harm on his children sufficiently severe to justify the practical severing of the parent-child relationship. Although we agree with the trial court that forcing the children to visit their father would not be in their best interest, the record does not support the denial of even supervised visitation should the children be willing. We accordingly reverse the trial court’s order insofar as it denies [Father] any visitation rights, and remand on this issue. In so doing, we emphasize the prohibition against parental behavior that is disparaging of the other parent, and that visitation may be modified if necessary.

Melvin v. Melvin (Tennessee Court of Appeals, Western Section, July 26, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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