Facts: Mother and Father, the parents of one child, divorced after six years of marriage.

Mother reported witnessing behavior from the child that led her to be believe Father may have sexually abused the child. The proof showed the Department of Children’s Services conducted a full investigation and determined Mother’s allegations to be unfounded.

The proof also showed that Father’s girlfriend, Katrina, sometimes stayed overnight with him during his parenting time.

The trial court ordered that (1) Father’s parenting time be supervised, (2) Katrina not be allowed to stay overnight during Father’s parenting time, (3) he have no holiday parenting time unless Mother agrees, and (4) sole decision-making authority was awarded to Mother.

Father appealed.

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

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. This effectively creates a presumption against severely circumscribing or denying visitation to noncustodial 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.

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 considering the issue, 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 noncustodial parent unless visitation will harm the child.

After reviewing the record, the Court went about the business of dismantling all the restrictions placed on Father’s parenting.

Regarding supervised visitation, the Court explained:

[T]here is no proof that Father exposed the child to inappropriate behavior, nor is there any proof that the child “saw something he shouldn’t have.”

Simply stated, there is no evidence in the record that Father’s unsupervised visitation would be harmful to the child. Consequently, we delete from the parenting plan the trial court’s order requiring supervised visitation.

As for the paramour provision, the Court found:

There is almost no evidence in the record regarding Katrina, and none that suggests her presence would pose a risk of harm or detriment to the child. Under these circumstances, we delete from the parenting plan the provision forbidding Katrina to spend the night with Father when the child is present.

What about the fate of the holiday parenting time provision?

[The trial court’s] approach might work fine, as long as the parties work together in a reasonable and cooperative fashion. If their working relationship sours, however, Mother is armed with a court order that grants her the power to deny Father from seeing the child on Christmas, birthdays, other holidays, and any additional vacation time. We agree with Father that the parenting plan should be crafted to entitle him to reasonable visitation time for holidays and vacations, without requiring Mother’s consent.

Sole decision-making?

Although Father asked that major decisions regarding the child, including those involving education, non-emergency health care, religious upbringing, and extracurricular activities, be made jointly between the parties, the trial court granted Mother sole decision-making authority. There is no evidence in the record supporting this decision, and the trial court made no findings of fact regarding why these decisions should not be made jointly. We hold that the parenting plan should be modified to allow major decisions regarding the child to be made jointly.

Accordingly, the trial was reversed and the parenting plan modified as explained above.

K.O.’s Comment: Kudos to my Knoxville colleague, David Valone, Esq., for a clean sweep on this appeal. Well done!

Mashburn v. Mashburn (Tennessee Court of Appeals, Eastern Section, June 30, 2016).

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