Supervised Visitation Vacated in Memphis, Tennessee Parenting Dispute: In re Jaxon W.

FactsMother and Father are the never-married parents of Child.

Once Father’s paternity was established, the juvenile court magistrate awarded Father parenting time on the first, third, and fifth weekends of each month plus time in the summer and on holidays.

Mother requested a de novo hearing before the juvenile court judge.

Tennessee supervised visitationAfter a two-day trial, the juvenile court judge found Child fears Father, does not want to be around him, and the court-ordered visitation is damaging Child emotionally. The trial court vacated all previous parenting orders and granted Father therapeutic supervised visitation under the care of a psychologist with the right to telephone contact upon approval of the treating psychologist.

Father appealed.

On AppealThe Court of Appeals vacated the trial court’s order.

When fashioning a parenting schedule for the first time, Tennessee law requires courts to grant visitation reasonably sufficient to maintain the parent-child relationship unless the court finds that visitation will likely endanger the child’s physical or emotional health.

When the parent has physically or emotionally abused the child, Tennessee courts may require that visitation be supervised or prohibited until there is no reasonable likelihood the abuse will recur.

The least restrictive visitation limits are generally favored to encourage the parent-child relationship.

While the evidence supported the trial court’s findings, the Court held they were insufficient:

The finding in the order that “[Child] appears to have a genuine fear of his father and emotionally is being scarred by the enforcement of visitation” provides a basis for the limitation of Father’s parenting time to therapeutic supervised visitation. The order, however, does not refer to [Tennessee Code Annotated] 36-6-301 or otherwise state the legal basis of its ruling; neither does it discuss the [best-interest] factors at Tennessee Code Annotated § 36-6-106(a)(1)-(15), which are to be applied when setting a parenting schedule that permits both parents to have maximum participation in the life of [Child] to the extent that it is in [Child’s] best interest for both of them to do so.

In the absence of an order that explains the legal basis for requiring that Father’s visitation be supervised in the manner ordered and applies the factors at § 36-6-106(a)(1)-(15) to the factual findings as affirmed herein, we are unable to afford of the trial court’s decision the deference that our review entails, and a remand for entry of an order that states the legal basis for decision is appropriate.

The trial court’s ruling was vacated and the case remanded for entry of a new order that makes appropriate findings regarding the statutory best-interest factors.

K.O.’s Comment: In Jernigan v. Jernigan — a memorandum opinion that cannot be cited (grrrrr!) [for readers who are not lawyers, if the Court of Appeals designates an opinion as a “memorandum opinion,” then the opinion can never be cited as precedent, even to trial courts] — the father entered into an agreed order that suspended his visitation and only allowed it to resume upon the recommendation of the children’s counselor. Years later when the father asked the court to order visitation, the trial court dismissed his effort without an evidentiary hearing because the children’s counselor had not recommended that visitation resume. The Court of Appeals ruled “he cannot be held to an unenforceable agreement to delegate the court’s authority to a third party unrelated to the justice system.”

The quoted language has stuck with me over the years. While courts should certainly consider the opinions of mental-health professionals, they should not delegate their authority to them, as happened here.

It bothers me to see courts cede their authority to “a third party unrelated to the justice system,” yet it happens all the time.

If anyone is aware of citable caselaw that frowns on that practice, please post it in a comment below.

In re Jaxon W. (Tennessee Court of Appeals, Western Section, February 15, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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