Facts: A year after their divorce, Mother and Father filed a joint motion to modify their parenting plan to, among other things, permit a registered sex offender to be in the presence of their children. After a hearing, the trial court granted the relief sought by both parents except the court refused to permit the registered sex offender to be in the children’s presence. Mother appealed.

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

Mother argued that Tennessee law does not prohibit a person who has been convicted of sexual battery by an authority figure from living in the same household as a minor unless the victim of the sexual battery was a minor. In this instance, the registered sex offender the parents wanted to be allowed to be around their children pleaded guilty to sexual battery by an authority figure in which the victim was not a minor. Mother argued that, because there is no “lawful prohibition against” the sex offender being in the presence of minor children, the trial court erred by denying the parties’ motion to modify the parenting plan to permit the sex offender’s presence around their minor children.

The welfare of the children is the primary consideration of the court when fashioning a parenting plan. Additionally, the trial court’s duty to make decisions that are in the best interest of the children is not trumped by an agreed order. Parents’ private agreements do not bind the court with respect to issues affecting the best interests of the children, and they do not relieve the court of its obligation to act in the children’s best interest.

Tennessee law provides that a registered sex offender must stay away from areas where children are believed to be present, e.g., schools, child care facilities, parks, playgrounds, etc. After citing these provisions, the Court concluded:

Tennessee statutes, taken together, impose a duty on trial courts to protect the best interests of children. Nothing in the statutes suggest that the trial court abused its discretion in denying Parents’ motion to amend the parenting plan to allow a convicted sexual offender to be in the presence of the minor children in this case. Mother’s argument is wholly without merit.

The trial court’s decision was affirmed.

K.O. Comment: It is highly unusual for a trial court to overrule the desires of both parents as to how their children should be raised. Two things stand out here: (1) the parents were asking the court to make a special exception to existing law that prohibits a sex offender from being around their children, and (2) the record failed to explain the sex offender’s relationship to the parents.

McCall v. McCall (Tennessee Court of Appeals, Western Section, June 29, 2012).

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