Facts: Mother and Father are the divorced parents of two children aged 13 and 12. Their agreed parenting plan at the time of divorce designated Father as the primary residential parent and awarded Mother 160 days of parenting time.

Five years later, Father petitioned to modify the parenting plan to restrict Mother’s parenting time to supervised visitation. Father alleged that Mother had been attempting to undermine one of the children’s relationship with Father, and that Mother was allowing Child to engage in unsupervised access to the Internet such that Child was posting age-inappropriate materials online.

The trial court expressed concern about Child and Mother’s activities on the Internet, commenting that Mother posting fully-clothed pictures of the children on sites such as Facebook and Instagram would be tempting to child predators.

The trial court temporarily restricted mother’s visitation to supervised visitation at a local supervised-parenting center known as the Exchange Club.

Mother was also ordered to complete a Rule 35 evaluation, which evaluation concluded that Mother was capable of caring for the children on an unsupervised basis. Specifically, the evaluator concluded that Mother demonstrates the capacity to care for the children in a loving, careful, and thoughtful manner, and does not represent a danger of harm to herself or others.

Despite this proof, the trial court granted Father’s petition to modify the parenting plan and ordered that Mother’s parenting time be limited to six hours of supervised visitation on Saturday and six hours on Sunday every other weekend. The new parenting plan does not allow Mother to have any holiday time with the children, and gives Father sole decision-making authority. The trial court also stated, “If I see one more [Internet] post with that child’s face on it, I may be cutting off all visitation together totally.”

Mother appealed.

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

Except in certain extreme circumstances, the public policy of the State of Tennessee requires courts to fashion custodial arrangements with the least restrictive visitation limits possible on the alternate residential parent in order to encourage the parent-child relationship.

Tennessee Code Annotated § 36-6-301 allows for supervised visitation if the court finds that visitation is likely to endanger the child’s physical or emotional health, or that the parent has physically or emotionally abused the child.

Supervised visitation may also be warranted based on findings consistent with Tennessee Code Annotated § 36-6-406.

Finally, a trial court may also consider the child’s safety and any risk of substantial harm posed by a parent in its best-interest analysis under Tennessee Code Annotated § 36-6-106.

The Court found the proof did not satisfy the standard required to order supervised visitation:

Father argues that examples of Mother’s irresponsible/dangerous conduct warranting supervised visitation include Mother’s lack of supervision over [Child’s] Internet usage, [Child’s] posting on social media sites and uploading makeup tutorials, . . . Mother not following the Exchange Club’s rules during supervised visits, e.g., giving the children gifts on no-gift days, and manipulating [Child] into wanting to live with her Mother. Based on our entire review of the record, we cannot agree that these occurrences rise to the level necessary to impose supervised visitation. . . . [T]he evidence does not support the finding that Mother is a threat to [Child’s] well-being. We also conclude that the remaining allegations made by Father, which were predominantly adopted by the trial court, do not rise to the level required for the trial court to limit Mother’s parenting time to 12 hours of supervised visitation every other week.

Because the evidentiary record did not support the trial court’s decision to impose supervised visitation, the trial court’s judgment was reversed.

K.O.’s Comment: (1) Supervision of a parent’s visitation is a significant intrusion on the parent-child relationship. While it is sometimes necessary in order to protect the child while permitting the continuation of the parent-child relationship, it is not to be undertaken lightly by a party or a court.

(2) Although this opinion does not say it, other cases make clear Tennessee courts may only restrict a parent’s visitation rights after finding “clear and definite evidence” that permitting continued visitation will jeopardize the child physically, emotionally, or morally. This evidentiary standard effectively creates a presumption against severely restricting or denying visitation. See, e.g., Mashburn v. Mashburn.

Allen v. Allen (Tennessee Court of Appeals, Western Section, March 7, 2017).

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