Nonparent Seeks Parenting Time in Lynchburg, Tennessee Divorce: Audirsch v. Audirsch

February 1, 2021 K.O. Herston 1 Comments

Facts: Wife filed for divorce. In her complaint, she said a child was born during the marriage, but Husband was not the biological father.

After DNA testing confirmed this, the final judgment of divorce found clear and convincing evidence that Husband was not the biological father of Wife’s child. Therefore, he had no rights or obligations to the child.

Per Rule 59.04, Husband sought post-judgment relief for parenting time with the child even though he acknowledged he was not the biological father.

The trial court denied relief because the DNA test results overcame the presumption of paternity raised by the child being born during the marriage.

Husband appealed.

On Appeal: The trial court’s judgment was affirmed.

Tennessee law provides that a man is rebuttably presumed to be the child’s father if the man and the child’s mother are married and the child is born during the marriage.

The definition of “legal parent” includes a man married to the biological mother of a child born during the marriage.

The Court found the DNA evidence overcame the presumption of parentage:

There does not appear to be any dispute that the child at issue was born during the marriage of the parties, and we do not question under the law that such a fact made [Husband] the presumptive father. . . . Presumptions, however, by their very nature are not absolute as to their subject matter, and here, we agree with the trial court that [Husband’s] presumption of parentage was sufficiently overcome by the very DNA testing he requested be performed. Moreover, [Husband] conceded he was not the biological father in his [post-trial] motion. . . . [W]e note that the same statutory section relied upon by [Husband] for his position about him being the “legal parent” belies the point. Indeed, the Code provides that, where as here, “the presumption of paternity . . . is rebutted . . . the man shall no longer be a legal parent for purposes of this chapter and no further notice or termination of parental rights shall be required as to this person.”

The Court affirmed the trial court’s judgment.

K.O.’s Comment: (1) Could Husband request parenting time as the child’s former stepparent? Perhaps.

Because Husband divorced the child’s mother, i.e., Wife, he meets the first criterion of Tennessee Code Annotated § 36-6-303(a)(1)(B). He would have more difficulty meeting the requirements of -303(b)(1), which require that he prove

  • “a significant existing relationship” with the child,
  • the loss of which is “likely to occasion severe mental, emotional, or physical harm to the child.”

It would be Husband’s burden to prove that Wife’s decision not to allow visitation “will cause substantial harm to the child’s mental, emotional, or physical health.”

While the path for stepparent visitation is challenging, at least Husband has standing to request parenting time in that capacity.

(2) Memo to Judge Goldin and his clerk: Referring to parties as Appellant and Appellee can confuse the reader. Other generic terms like Husband/Wife or Mother/Father make opinions easier to follow.

Audirsch v. Audirsch, (Tennessee Court of Appeals, Middle Section, January 22, 2021).

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Nonparent Seeks Parenting Time in Lynchburg, Tennessee Divorce: Audirsch v. Audirsch was last modified: February 2nd, 2021 by K.O. Herston

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