Facts: After a short marriage that produced Son, the parties separated. While the divorce litigation was pending, Mother began to suspect that Father was abusing Son. Mother then abruptly left the state with Son without telling Father. Father was unable to locate them for several months. In Mother’s absence, the divorce court entered a default judgment against Mother in 2003 that included a parenting plan designating Father as the primary residential parent. The parenting plan gave Mother standard alternate parenting time every other weekend and alternate holidays. When Father finally located them in Michigan, Mother was arrested. Mother was subsequently charged with custodial interference and served eight days in jail.

Three days after Mother was released from jail, she filed a report of suspected abuse with the Tennessee Department of Children’s Services (DCS). The DCS report stated that Mother had “concerns” that Father was sexually abusing Son and that “people in the church drugged her and then abused her children” while she was in a semiconscious, dreamlike state. A DCS investigation revealed the allegations to be unfounded.

During the next several years, the parties were frequently in court on a variety of parenting disputes.

In the summer of 2009, abuse allegations against Father surfaced again. Mother claimed that Son told her Father left him in his bedroom for long periods of time with only bread and water and a cup to use as a toilet. Mother claimed that Son also revealed that Father had touched his “private parts” and had allowed others to do so, too.

Mother filed a dependency and neglect petition. Pending resolution of the allegations, the trial court entered a protective order permitting Father only supervised parenting time.

Father filed a motion to eliminate all of Mother’s parenting time or require that any contact be closely supervised on the grounds that Mother “made numerous false and malicious allegations.”

Testimony from 18 witnesses, including Son, was heard over two days, after which the trial court ordered a psychological evaluation of both parties and Son. When Mother refused to cooperate with the court-ordered evaluation, the trial court granted temporary custody to Father after the psychologist concluded that the physical and sexual abuse allegations appeared to be unfounded. One month later, Son recanted his prior allegations of abuse. When asked by the psychologist why he had lied about Father, Son replied, “I was scared of my Mom.” He added, “She would scream if I disagreed with her.” When asked for clarification, Son explained that Mother repeatedly told him that Father sexually abused him. If Son disagreed with this claim, Mother would “scream” at him until he stopped disagreeing.

In the end, the trial court made this factual finding about the abuse: “[T]he alleged abuse did not actually take place, . . . the allegations of sexual abuse and physical abuse are not true.” The trial court concluded that it was necessary to suspend all parenting time for Mother, even supervised visitation, “until . . . Mother submits a plan of therapy which will provide her with the skills necessary to allow her to conform to the Court’s orders.” Thus, the trial court returned custody of Son to Father and terminated Mother’s parenting time with Son “until a proper petition is filed.”

Mother appealed.

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

A decision to suspend all contact between a parent and child is not a decision to be made lightly. The stakes of an erroneous decision are high. On one hand, if any type of contact with the parent would in fact be emotionally injurious to the child, then a court order requiring such contact may have profound consequences to the child’s well-being. On the other hand, eliminating any contact between parent and child whatsoever “has the practical effect of terminating the parent-child relationship,” and carries with it profound consequences to both the parent and 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. These evidentiary standards have effectively created a presumption against severely circumscribing or denying visitation to non-custodial parents.

After reviewing the record, the Court concluded:

From our careful review of the record, and with appropriate deference to the trial court’s assessment of the witnesses’ credibility, the factual finding that Mother coerced Son into making the abuse allegations is also supported by the preponderance of the evidence in the record. Such a determination does not require the trial court to find that Mother was aware that the abuse allegations were false or that she sought to inflict harm on her son. To the contrary, the proof in the record indicates that Mother convinced herself that Father abused Son, and then relentlessly “prodded” Son into “disclosing” the abuse that she believed had really happened.

Moreover, the abuse allegations that Mother coerced Son into making against Father are horrific. Beatings, drugs, nightly anal penetration by Father, trips to hotels for multiple members of Father’s church to inflict still more abuse. Coercing a child into making such monstrous allegations against his own father can have crippling psychological effects and be ruinous to the child’s relationship with his father….

Under the circumstances in this case, the trial court below had ample basis to conclude that, until Mother received considerable help from a mental health professional, she could not help but continue to inflict emotional abuse on Son, by constantly focusing on sexual abuse and communicating to Son that he is unsafe in the presence of his father….

The trial court below laid out a clear pathway for Mother to resume her relationship with Son, if only she will take it.

Thus, the trial court was affirmed.

F.A.B. v. D.L.B. (Tennessee Court of Appeals, Middle Section, October 29, 2013).

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

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