Facts: During Father and Mother’s divorce, the trial court found that Father sexually abused his thirteen-year-old Daughter by inappropriately touching her on top of her pajama bottoms between her legs and under her t-shirt. (Note: Father was acquitted of criminal charges arising out of this incident.) The trial court denied Father any parenting time whatsoever with Daughter. Father appealed. Finding that the trial court had failed to make the necessary finding, the Court of Appeals remanded the case to the trial court for a new hearing. On remand, the trial court was charged with the responsibility for crafting the least restrictive visitation plan for Daughter, with the proviso that a complete denial of visitation must be premised on clear and definite evidence of harm to Daughter that would be caused thereby. At the second hearing, Wife introduced minimal relevant evidence. Nonetheless, the trial court again denied Father any parenting time. Father appealed again.

On Appeal: The Court of Appeals reversed the trial court (again) and remanded the case to a different trial court.

A non-custodial parent’s visitation may be limited, or eliminated, if there is definite evidence that to permit the visitation would jeopardize the child, in either a physical or moral sense.

Because of the legal and psychological significance of a parent’s visitation rights, persons seeking to restrict or eliminate visitation must demonstrate that there is probable cause that the child will be placed at risk if visitation is permitted. The Tennessee Supreme Court requires that this proof must be “definite,” and Tennessee Code Annotated § 36-6-301 requires that the proof demonstrate that visitation is “likely” to endanger the child’s physical or emotional health. These evidentiary standards have effectively created a presumption against severely circumscribing or denying visitation to non-custodial parents. Such drastic measures are only appropriate when arrangements less detrimental to the parent-child relationship are not available or workable as a practical matter.

Termination of visitation, which has the practical effect of terminating the parent-child relationship, must be supported by specific findings that visitation by the non-custodial parent will result in physical, emotional, or moral harm to the child.

Accordingly, there is a specific process the trial court must follow when limiting, suspending or terminating visitation. First, the trial court must make a specific finding, based on definite evidence, that visitation would cause harm to the child. After making this finding, the trial court must then determine the least restrictive visitation plan as available and practical. In determining the least restrictive visitation plan, the trial court must make specific findings, based on definite evidence, that any less restrictive visitation would be harmful to the child. The burden of proof on both the issue of harm and the least restrictive visitation plan, is on the party seeking to restrict visitation. In making these determinations, the trial court must bear in mind that “it is the public policy of the state of Tennessee that courts shall grant parenting time with the non-custodial parent unless visitation will harm the child.”

While the trial court made the specific finding that any contact between Father and Daughter would be harmful, the Court found the evidence submitted by Mother did not satisfy the high standard required.

Unfortunately, from our careful review of the record, this finding is in no way supported by “clear and definite” evidence. The evidence in the record consists of the factual finding of an incident in which Father inappropriately touched Daughter. This evidence was found in the first appeal to be insufficient in and of itself to warrant a complete denial of parenting time. In the hearing on remand, the only evidence added to the equation was Mother’s testimony that Daughter rejected Father’s gift and note, as well as his Facebook friend request, and that she becomes upset or angry when the topic of Father arises. That is the totality of the evidence on which the trial court based its decision. Despite the fact that Daughter was sixteen at the time of the hearing on remand, there was no testimony by Daughter, no clear evidence in the record of Daughter’s thoughts or feelings about Father or the prospect of any future relationship with Father, no opinion or recommendation by a mental health professional, nothing that would amount to “clear and definite evidence” that joint counseling for Father and Daughter, supervised visitation, written communication, or other limited, controlled contact or efforts toward establishing contact would be emotionally harmful to Daughter.

The requirement of clear and definite evidence to support a denial of any parenting time or contact whatsoever is not a rote or mechanical requirement, a hoop for the trial court to jump through. The stakes of an erroneous or unfounded decision are high. On one hand, if any type of contact with Father would in fact be emotionally injurious to Daughter, then a court order requiring such contact may have profound consequences to Daughter’s well-being. On the other hand, eliminating any contact between Father and Daughter whatsoever “has the practical effect of terminating the parent-child relationship,” and carries with it profound consequences to both Father and Daughter.

In light of Father’s sexual abuse of Daughter, the Court did not feel comfortable simply overruling the trial court and ordering visitation. At the same time, the Court felt “[t]he prospect of remanding the case to the trial court below is dispiriting . . . .”

In the case at bar, it appears that the trial judge had difficulty putting his previous views and findings aside and complying with the mandate on remand. We find as well that reassignment to a different trial judge is advisable to preserve the appearance of justice.

The trial court was reversed and the case remanded to a different trial court.

K.O.’s Comment: Compare the evidence in this case with that presented in Winkler v. Winkler, where the Court of Appeals upheld the trial court’s denial of any visitation to one parent.

Rudd v. Rudd (Tennessee Court of Appeals, Western Section, December 22, 2011).

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