Facts: Father and Mother, the parents of two children, presented with an uncontested divorce on grounds of irreconcilable differences. Their agreement was contained within the proposed final decree of divorce that incorporated a marital dissolution agreement and permanent parenting plan that had been signed by both parties.

At the hearing for the trial court to consider and either approve or reject the parties’ agreement, Mother requested certain changes to which Father objected. The trial court heard from both parties who revealed, inter alia, that Father was HIV-positive and in a relationship with a male paramour.

The trial court modified the final decree of divorce by including the following self-styled “injunctions”:

No homosexual activity around children. Father to avoid body fluid exchange with children, no bathing, showering, or sleeping with children. . . . Father may have no paramours around the children whatsoever.

Father appealed.

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

Under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 8 of the Tennessee Constitution, the government may not deprive an individual of life, liberty, or property without due process of law.

Due process requires the opportunity to be heard at a meaningful time and in a meaningful manner. When a court’s determination turns on a question of fact, the courts must give litigants the chance to present evidence and to confront adverse witnesses.

Due process also requires appropriate notice in order to afford the litigant the opportunity to be prepared to present evidence

The Court determined the trial court made substantive changes to the parties’ agreement without affording Father due process of law:

[T]o comport with due process, the trial court should have afforded Father and Mother notice so they could be prepared to present competent evidence. That was not done in this case. Therefore, the judgment of the trial court must be vacated.

On remand, should the parties not present an agreement that is acceptable to the court, after affording the parties due notice and an opportunity to present evidence, the trial court should consider the ruling in Hogue v. Hogue before imposing generalized “paramour” and “lifestyle” restrictions. As we discussed in Hogue, restraints on visitation should be well defined. Moreover, restraints must involve conduct that competent evidence shows could cause harm to the child.

The Court then quoted the Hogue opinion:

[I]t is not necessary to create new and different visitation rules and restraints depending on sexual orientation. Visitation decisions should be guided by the best interests of the child. . . . Neither gay parents nor heterosexual parents have special rights. They are subject to the same laws, the same restrictions. Our courts should follow the same principles for placing restrictions on gay parents [that] they use on any parents; those principles provide that after making an award of custody, the trial courts are to grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship unless the court finds that visitation is likely to endanger the child’s physical or emotional health.

Thus, the trial court’s judgment was reversed and the case remanded for further proceedings.

Brantley v. Brantley (Tennessee Court of Appeals, Middle Section, September 15, 2017).

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