The Paramour Provision and Child Custody – Part 2

In my last post, I wrote about a nasty surprise some divorcing parents receive along with all the other unpleasantness that goes along with a divorce.  That post is about the theory and reasoning behind the paramour provision, which appears in many parenting plans in Tennessee.  Now for the good news:

The death of the paramour provision

It’s probably far too early to say that the provision is dead, but the rules are changing for the better.  In a recent case, the Appellate Court for the western division of Tennessee considered whether or not a paramour provision should be required in every parenting plan.

Here’s a quick summary of this case:  A couple is married with two children.   The father has an affair and the mother seeks a divorce.  Father later marries the woman with whom he had the affair, and the mother begins a relationship with a same-sex partner.

For a time, the mother has custody of the children.  Mother and her partner move out of the state, so the parents agree that the father will have custody of the kids here in Tennessee.

After a few years, mother and her partner move back to Tennessee and she asks the court to modify the parenting plan to give her custody of the children.  As part of the process, the court sends the parties, their partners, and the kids to a psychologist for an evaluation.

The psychologist found that the son had a positive relationship with both parents and their partners, and while the daughter had a good relationship with her mother and mother’s partner, she had a “fair” relationship with her father, and a worse relationship with her father’s wife.  It was even noted that mother’s same-sex partner was a positive influence on the daughter, while exposure to her stepmother had caused her to develop depression.

The result of the evaluation was a recommendation that the son should live primarily with the father, and the daughter should live primarily with her mother.  This arrangement was accepted by the parties and the court.

However, even though the father didn’t request it and mother objected, the court insisted that the parenting plan must include a paramour provision.  Of course, this doesn’t affect the father any, he’s already married the “other woman”.

But this puts the mother in a serious bind.  This wasn’t a case where the mother was subjecting her daughter to random sexual partners.  At the time of the appeal she had been with her partner for nine years, and a clinical psychologist had determined that the partner had a positive influence on the child.

Yet the trial court rejected all this and forbid the girl’s primary custodian from allowing her partner of nine years to spend the night in the house.  Mother can’t fix the situation with marriage, Tennessee doesn’t recognize same-sex marriages.

Does this result sound a little ridiculous to you?  It must have seemed insane to the mother.  This was the perfect case to appeal, which is exactly what she did.

The Appellate Court changes the rules

The law can changeThe decision was relatively easy for the Court of Appeals.  The court observed that the most important consideration in developing a parenting plan is doing what is in the best interest of the children.  In this case, there was no evidence whatsoever that excluding the mother’s partner was in the best interest of the children.  In fact, the evidence suggested the paramour provision was more harmful to the children than helpful.

The Appellate Court concluded that not only is the trial court not required to include the paramour provision in a parenting plan, but it was an abuse of discretion to inflict the provision on the parties without any evidence that the provision was necessary.

What you need to know

This is a decision that will have a greater impact than most divorcing couples realize.  In the majority of cases, the mother will have primary custody of the children while the father has visitation in some amount.  Too often, the family court would impose this restriction on parents even though there was no indication that the children needed to be protected from the people the parents may date.

This case moves us toward a requirement that the provision will only be added if it can be shown to the court that the best interests of the children depend on it.  Unfortunately, the Court of Appeals didn’t give us any hints on what the trial courts should look for, or how to analyze the facts presented.  All we have is the vague “best interests of the children” standard.

If you are in a situation where the paramour provision may be an issue in your case, you would benefit from the assistance of an attorney.  Contact me to find out how I can help you.

Would you like to read the case for yourself?  It went to the Court of Appeals twice.

Barker v. Chandler #1

Barker v. Chandler #2