### IN THE CO URT OF APPEALS OF TE NNE SS EE AT JACKSON Ass ig ne d o n B rie fs Apri l 2 1, 2 00 9

JO SEPH MARI ON BARKE R

v. ANGEL CH ANDLER

An Appeal f

rom the Chancer y Court for G ibson County No. 16976 G eorge R. Ellis, Ch ancellor

No. W2008-02255-C OA-R3-C V - F iled Septem ber 18, 2009

This post-divorce appea l challeng es the “over night p ar am our” provision in the parties’ pare nting plan. By ag ree ment, the parties soug ht to modify the pare nting plan for their two teena g e children,

a son and a daug hter. At the time, the fathe r lived with his new wife, and the mother lived with her unmarrie d partne r of nine y ear s. The parties ag ree d that the fathe r would be the primary residential
pare nt of t heir son, and that the m other would be the primary residential parent of the ir daug hter. The permanent parenting plan form completed by t h e parties included a “para mour provision,” i n

acc ordanc e with a local court rule mandating that pare nting plans prohibit the non-spouse para mour

o f ei t h er p are nt from spending the night in the same residenc e as the minor child. The mother objected to the inclusion of this provision, arg uing that the children’ s best interest would be serve d by permitting the m to stay

in her home a long w ith her par tner. Despite finding that the childre n’s well-be ing would not be adver sely impacted by the arr ang ement on which the parties had ag ree d, the trial court refused to eliminate t he provision on the basis that state l aw and publi c poli cy require d that such a provision be included. The mother now appea ls. We reve rse, fi n d i n g t h at Tenne ssee statutes and public policy dictate that the children’ s best interest is the para mount consideration, and thus the trial court mus t h av e the discretion to alter or eliminate the para mour provision in a pare nting plan if

the cour t finds that doing so is in the childre n’s best intere st.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court is Reve rsed and Rem anded

H O L L Y M. K I R B Y , J
., delivere d the opinion of the Court, in which A L A N E. H I G H E R S , P.J
., W.S
., and J

. S T E V E N S T A F F O R D , J ., joined.

Gr ego ry W. Minton and J oseph M. Dash of Medina, Tenne ssee; L ucian T. Pera and Br ian S

. Fa ug hnan of Memphis
, T en n essee; and Christine P. Sun and Tricia R. Her zfield of Nashville, Tenne ssee f

or the a ppellant, Ang el Chandler.

No Appellee Br ief wa s filed.OP INION

Ang el Chandler (“Mother ”) and J oseph Marion Ba rker (“F ather ”) wer e marrie d in Fe bruar y 1992. They had two children during the marria g e, Z .B., born April 9, 1993 (“Son”)
, and C.B., born May 10, 1995 (“D aug hter” ). After Fa ther eng ag ed in an ex t ra m ar i tal aff air with his now-c urre nt wife, Mother filed a petition for divorce. I n November 1998, the trial cour

t entere d a final decr ee of divorce
, in which Mother was desig nated as the primary residential pare nt of Daug hter, and Fa ther

was desig nated as the primary residential pare nt of Son. Eac h pare nt had reg ular pare nting time with the child who lived with the ot h er pare nt. This pare nting plan did not include any provision restric ting the pare nts from having any person prese nt, overnig ht or otherwise
, wh i l e t he child resided w ith the pare nt.

About a y ear afte r the divorce
, Mother beg an a rela tionship with a same-se x partne r, M.C., with whom she now lives. At some point, Fa ther marrie d his curr ent wife. I n J anuar y 2001, upon 1
ag ree ment of the parties, the trial court modified the pare nting pl an t o d esig nate Mother as the primary residential pare nt of Son as well as Daug hter. This modified pare nting plan likewise did not prohibit the parties fr om having an over night pa ramour in the pr esenc e of the children.

I n Aug ust 2002, Mother moved to North Carolina with her part n er M

. C

. At that time, 2 Mother and Fa ther ag ree d that Fa ther would be the primary residential pare nt for t h e ch i l d ren. 3 Severa l y ear s later, Mother moved back to Trenton, Gibson County
, Tenne ssee, wher e Fa ther lived along with his wife (“ Stepmother”) a nd the childre n. Mother’s partner, M.C., lived in both North Carolina and in Tr enton with Mother, “splitting time” betwee n the two states.

After Mother moved back to Tenne ssee, on May 22, 2007, Fa ther filed a petition to modify the parties’ pare ntin g p l an

. Mother filed a counter -petition for modification. On November 19, 2007, the trial court enter ed a consent order requiring all of the parties involved — Fa ther, Mother, Stepmother, M.C., and the two children — to m ak e t h em s elves available for psy cholog ical evalua tions and testing. The trial court also order ed that, pending final resolution, Fa ther would be the primary residential p ar en t o f S on, and Mother would be the primary residential pare nt of Daug hter.

The court-or dere d evalua t ions wer e conducte d by clinical psy cholog ist David Pickering
, Ph.D. (“D r. Pickering ”). On May 1, 2008, afte r completing the evalua tions, Dr. Pickering submitt ed his repor t to the trial court. The repor t detailed the results of the mental status examinations and
psy cholog ical testi ng for ea ch s u bject, as well as observa tions about t he parties’ i ntera ctions with

N o n

- p a r t i e s i n t h i s l a w s u i t w i l l n o t b e r e f e r r e d t o b y t h e i r f

u l l n a m e s b e c a u s e o f p r i v a c y c o n c e r n s

. 1

T h o u g h t h e c o u r t d o c u m e n t s i n d i c a t e t h a t M o t h e r m o v e d t o V e r m o n t , M o t h e r r e p o r t e d t h a t s h e i n f a c t m o v e d 2

t o N o r t h C a r o l i n a

.

M o t h e r i n d i c a t e d t h a t , a t t h e t i m e s h e m o v e d
, t h e p a r t i e s h a d a g r e e d t h a t t h e c h i l d r e n w o u l d j o i n h e r w h e n s h e 3

w a s s e t t l e d i n N o r t h C a r o l i n a , b u t t h a t F a t h e r s u b s e q u e n t l y “ h a d g o n e b a c k o n h i s w o r d

. ”

-2-their respe ctive partne rs and with the children. The repor t indicated th at S o n h ad a positive rela tionship with both pare nts, as well as Stepmother and M.C. The repor t also indicated that Daug hter had a positive rela tionship with Mother and M.C., and that she had a fair rela tionship with Fa ther. Howeve r, Dr. Pickering had substantial criticism of Stepmother and her pare n t i ng of Daug hter, and he indicated that, unfortunate ly
, Fa ther tended to follow Ste p m o t h er ’s lead with Daug h t er

. He char acte rized Daug hter’s rela tionship with Stepmother as quite problematic. Dr. Pickering indicated that Daug hter suffe red from depre ssion stemming from her difficult rela tionship with Stepmother and opined that requiring Daug hter to continue to reside with Stepmother would

cause Daug hter’s e motional condition to further dete riorate

.

I n the conclusion of his repor t, Dr. Pickering rec ommended that Fa ther rema in the primary residential pare nt of Son, and that Mother rema in the primary residentia l p ar ent of Daug hter. He noted that this arr ang ement would expose Daug hter to Mother’s para mour (M.C.) when she stay ed
at Mother’s home and weig hed this ag ainst the potential damag e to Daug hter’s mental and emotional state fr om continuing to re side with Stepmother:

Fa ther is marrie d to [S t ep m o t h er]
, so [Daug hter] and [ Son] are not exposed to any para mours at their fathe r’s home. Howeve r, since [Mot her] is involved in a same sex rela tionship, and the State of Tenne ssee does not allow or rec og nize either same sex marria g e or civil unions, their exposure to [M.C.]
, by definition, involves exposure to thei r m other’s para

mour. [S on] has positive rela tionships with all adults in this evalua tion, and there appea rs to be no rea son living with one pare nt would be better for him than l iving with the other. Howeve r, [Daug hter’s] rela tionship with [S tepmother] is so extremely neg ative, and [S tepmother’s] acti o n s t owar d [Daug hter], no matter how g ood intentioned, appe ar to be exacer bating her depre ssion, and could also be encour ag ing [ Da u gh t er] to behave neg atively as an oppositional response to demands she pe rce ives from [Fathe r]. I f [ Daug hter] wer e to live with [Father and Stepmother], it is likely the situation will deter iorate further
, rathe r than improve. I t is there fore rec ommended that the children’ s wishes g uide the resolution of this situation. I would rec ommend place ment with [Father and Stepmother] for [S on], and with [ Mother] for [Daug hter].

Dr. Pickering rec ommended liberal visitation for eac h pare nt and sug g ested that the children should be allowe d to have f

reque nt visit ation toge ther in the same household. He c ited rese arc h showing

no adver se impact on children living with pare nts with same-se x partne rs, and he indicated that the trial court would need to addre ss issues involving the cohabitation of Mother and M.C. “I t w ill be for the court to decide [i ssues] conce rning [M.C .], due to the para mour clause in most visitation order s. Howeve r, curr ent results do indicate [M.C .] is a positive pare nt surrog ate for both children, and has a ppropriate rela tionships wit h them both.”

On May 15, 2008, a hear ing was conducte d on the par ties’ motions for modification of the
pare nting plan. D r. Pickering ’s report was submi tted to the t rial court for review and was e ntere d into evidence . The pa

rties told the trial court that they had agr eed to f ollow the rec ommendations

-3-in Dr. P icker ing’ s repor t reg arding the s hare d pare nting provisions. Acc ording ly
, they completed

a standard form perma

nent pare nting plan, develope d by Tenne ssee’ s Administrative Offic e of the Courts (“A OC ”)
, s et ting out the terms of the residential schedule s for the children. This form included what is known as a “par amour provision,” stating that “[a]ny para mour of any pare nt and that pare nt are not to spend t he night in the s ame r esidenc e whe n that pare nt and one of the m inor children are prese nt.” The AOC form is consistent with Rule 23:00 of the Rules of Chance ry Court for the 28 J udicial District (“L ocal Rule 23”), which require s inclusion of the para mour provision t h in the AOC perma

nent par enting plan form.

Although M o t h er g ener ally ag ree d with the perma nent pare nting plan, she objected to the inclusion of the para

mour provision, g iven that M. C

. l i v ed wi th her in her home. The trial court noted Mother’s objection but insisted that the para mour provision rema in intact “like all in the rest of [parenting plans in] the state of Tenne ssee.” The trial court clar ified that “we ’re not talking about adver se impact [on the children]

. . . . We’re not g oing to make a distinction betwee n para mours of

one sex or the other.” The trial cour t ad d ed
, “I ’m not say ing that [Mot her] and [M.C .] cannot be toge ther. I ’m specif

ically say ing that they cannot sleep toge ther while a child is in the house. . . . Appar ently
, Dr. Picke r in g f o u n d [M

. C.] to be a positive influence

. The issue is para mour overnig ht.” The trial court reiter ated, “I think that’s a policy acr oss the state o f T en n es s ee

. I don’t know any J udg e in this state that does not pr eclude para mours overnig ht w hen the children are prese nt in the home.” The trial court commented that, “if there ’s a rea son not to put that in a perma nent pare nting plan, this will have to come fr om the wisdom of our appe llate cour ts.”

Wit hin wee ks afte r the hear ing, Mother and Daug hter moved back to live with M.C. in North Carolina. Natura lly
, this reloc ation altere d the parties’ pare nting arr ang ements and also hindere d the ability of Son and Daug hter to see eac h other. The parties continued to ag ree that Mother would be the primary residentia l p ar ent for Daug hter, and Fa ther ag ree d to Daug hter’s reloc ation to North Carolina with Mother. As befor e, the parties completed a pare nting plan setting out the terms of the children’ s residential schedule s. On September 4, 2008, the trial court enter ed an orde r consistent with the parties’ ag ree ment, and on Octob er 2
, 2008, it signe d the new pare nting plan. The final order and the pare n t i n g p l an both included the para mour provision to which Mot her had objected
at the May 15, 2008 hear ing. The o rd er s t at ed t h at , “as a matter of law, the para mour clause is require d by

the l aws and public policy of t he S tate of Tenne ssee .

. . .” The trial court noted in its order that Mother rese rved the rig ht to challeng e on appea l the inclusion of the para mour provision based on her view that such a provision is not require d as a matter of law and that, in the alterna tive if such a provision is require d, it violates her constitutional rig hts to equal protec tion, privac y , and due proce ss. Mother now appea ls, c halleng ing only the inclusion of the para mour provision in the trial court’s order and pare nting plan. Fa ther did not file an appellate brief in this case , and Mother’s
arg uments are otherwise unoppose d in this appeal.

Mother no w argue s, as she did in the trial court, that the trial court is not prec luded as a matter of law from altering or eliminating the para mour provision in her pare nting plan. She claims that L ocal Rule 23 is inconsistent with statutory law, is i n v al i d
, and cannot justify the para mour provision in this case

. She further arg ues that including a para mour provision in the pare nting plan

-4-in this case was not in the best interest of the children. Alterna tively
, Mother arg ues, if such a

provision is required, it violates her rig hts under the state and fe dera l constituti ons.

We note that the trial court’s decision to include the para mour provision in this pare nting plan did not arise from a finding based on evidenc e that such a provision was in the best interest of these children. Rather, the trial court felt cons trained to include such a provision in the parenting plan “a s a m at t er of law,” despite evidenc e to the contra ry rela ting to the children’ s well being

. 4 Consequently
, the threshold issue on appea l is whether the trial court was, in fac t, leg ally prec luded from altering or eliminating the para mour provision in the pare nting plan. This issue is a matter of law, which we revie w de novo o n t h e re cord, aff ording no defe renc e to the trial court’s decision. Union C arbide Corp. v. Huddleston , 854 S.W .2d 87, 91 (Tenn. 1993)

.

I n 2005, the leg islature direc ted the AOC to develop a standard perma nen t p ar enting plan form “that shall be used consistently by eac h court within the state that approve s par en t i n g plans pursuant to § 36-6-403 or 36-6-404 on and afte r J uly 1, 2005.” T en n

. C o d e An n

. § 36-6-404( d) (2005). The “Residential Parenting Schedule” section of the AOC form includes subsections with blanks for parties to fill in information rela ted to the children’ s residential pare nting time, day -to-day schedule s, holiday schedule s, and simil ar provisions, all of which are require d by statute. See Tenn. Code Ann. § 36-6-404. The final subsection entitled “Other ” is left blank and is obviously desig ned
to g ive parties a place to include specia lly -desig ned provisions to addre ss issues not cover ed in the form subsections. The standard form develope d by the AOC at the direc tion of the leg islature does not inc lude a pa

ramour pr ovision. Howeve r, L ocal Rule 23 for the 28th Judicial District require s 5 courts in that judicial district to add the following in the “Other ” sec tion of the AOC form:

Any para mour of either pare nt to whom a pare nt is not leg ally marrie d is not to spend t he night in the presence of or in the same re sidence with any minor child of t he parties. The parents shall not use an y i l l ega l drug s, consume any alcohol or allow any other person to use any illega l drug s or alcohol in the prese nce of the minor children.

L ocal Rule 2 3

. L o ca l R u l e 23 undoubtedly stems from the leg ion of Tenne ssee case s in which divorce d pare nts are require d to ref rain from having an overnig ht para mour while their minor child is residing with them. See, e.g., Adam s v. Adam s , W2008-00225-COA-R3-CV, 2009 WL 690697,
at *1 (Tenn. Ct. App. Mar. 17
, 2009); McDaniel v. McDaniel
, No. W2007-01587-COA-R3-CV, 2008 WL 5263605, at *1 (Tenn. Ct. App. Dec

. 18, 2008). This re fl ec t s t h e common-sense understanding that the childre n can be adver sely aff ecte d by exposure to such overnig ht para mour visits with a pare nt. Her e, the p ar am our provision was included in the parties’ pare nting plan

T h e t r i a l c o u r t s t a t e d t h a t t h e i n c l u s i o n o f t h e p a r a m o u r p r o v i s i o n i n t h e p a r e n t i n g p l a n w a s “ r e q u i r e d b y t h e 4

l a w s a n d p u b l i c p o l i c y o f t h e S t a t e o f T e n n e s s e e ” b u t d i d n o t c i t e a n y s p e c i f i c l a w s t o w h i c h i t w a s r e f e r r i n g

.

T h i s f o r m c a n b e f

o u n d o n t h e A O C w e b s i t e , w w w

. t s c

. s t a t e

. t n

. u s ( u n d e r P r o g r a m s & S e r v i c e s )

. 5

-5-beca

use it was mandated by L ocal Rule 23. The issue, then, b ec o m es whether the trial court is 6 prohibited from altering or eliminating a para mour provi s i o n t h at is included in a pare nting plan solely beca use of the r equire ment in a local r ule such a s L ocal Rule 23.

Despite the important considerations underly ing L ocal Rule 23, such a local rule cannot bind the h an d s o f a trial judge to make decisions that are in the best interest of the children who come befor e the court. Tennessee ’s courts have long held that the best interest of the child is the s ingle most im portant fa ctor in matters involving pare nting time and visitation:

[I ]n all custody case s

. . . the child’s best interest is the para mount consideration. I t is the polestar, the alpha and omega

. * * * There are literally tho u s an d s o f t hings that must be taken into consideration in the lives of y oun g children, and these fac tors must be revie wed on a compar ative
approa ch . . . . * * * The only rig id principle is and must be that the best interests o f the child are para mount in any

custody deter mination.

Bah v. Bah
, 668 S.W .2d 663, 665-66 (Tenn. C t

. App. 1983) (citations omitted; reje cting rig id applicat i o n o f the “tende r y ear s” doctrine and adopting the compar ative fitness approa ch). This principle wa s adopted by

Tenne ssee’ s leg islature in e nacting statutes g overning custody disputes. See Tenn. Code Ann. § 36-6-106( a) (2005). I t has been consistently rea ffirme d b y o ur Supreme Court

. I n r e C.K.G.
, 173 S.W .3d 714, 732 (Tenn. 2005); Lentz v. Lentz
, 717 S.W .2d 876, 877 (T en n

. 1 9 8 6 ). Thus, while a rule such as L ocal Rule 23 can be instructive, it is subordinate t o Tenne ssee public policy mandating that trial judge s make decisions reg arding residential pare nting of childre n “upon the ba sis of the best intere st of the child.” Te nn. Code Ann. § 36-6- 106(a)

.

I n this case , the trial court stated that it included the para mour provision in the parties’
perma nent pare nting plan only beca use it was constraine d to do so under Tenne ssee law, presumably L ocal Rule 23. We find as a matter of law that this conclusion wa s er ro n eo u s. We make no judgme nt reg arding whether inclusion of t he paramour prov i s i o n i n this pare nting plan serve s the children’ s best interest in this case , and we make no decision as to whether Daug hter’s best interests

are serve d by

having Mother or Fa ther desig nated as her primary residential pare nt. We hold only that the t rial co u rt was not require d to include the para mour provision in the permanent parenting plan. There fore
, we reve rse the tr i al co u rt ’s decision and rema nd the case for the trial court to

rec onsider Mother’s arg ument in light of our holding. This holding prete rmits all other issues raised in this appeal.

I n t e r e s t i n g l y , t h e a l c o h o l a n d d r u g p r o v i s i o n a l s o m a n d a t e d i n L o c a l R u l e 2 3 w a s n o t i n c l u d e d i n t h e p a r e n t i n g 6

p l a n a t i s s u e i n t h i s a p p e a l

.
-6-The decision of the trial court is reve rsed and the cause is rema nded for further proce eding s consistent with this Opinion. Costs on appea l are to be taxed to Appellant Ang el Chandler, and her surety , for whic h execution may issue, if nec essar

y

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ HOL L Y M. KI RBY, JUDGE

-7-