Opinion » Viewpoint

Unlocking the Door

Ruling could liberalize custody and visitation rights for divorced parents.

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The Tennessee Court of Appeals at Jackson announced a breakthrough opinion last Tuesday, Barker v. Chandler, expanding divorced parents' rights to have unmarried post-divorce relationships and still parent the children of their former marriage. Angel Chandler wanted to live with her long-term lesbian partner and still have her children from a former marriage visit for substantial periods of time.

Chancellor George Ellis of Gibson County, however, refused to allow simultaneous visits by Chandler's partner (unnamed in court documents), though Chandler had offered supportive testimony from a psychologist who had evaluated Chandler, her partner, Chandler's former husband, and her children.

By holding that Chandler can live with her partner and simultaneously have parental visitation with her children, the Court of Appeals has opened the door for some divorced couples, including gay and lesbian couples, to experience more freedom in their relationship choices while still maintaining custody of or visitation with their children.

"Paramour prohibitions," a legalese way of saying "no boyfriends or girlfriends allowed," traditionally have prevented a divorced parent in Tennessee from having a boyfriend or girlfriend legally spend the night while children are living in the house.

"Get married or get out" was the implied message to significant others prior to last Tuesday's ruling — a problematic choice for all unmarried couples and a devastating one for gay, lesbian, bisexual, and transgender couples, who have no nuptial options in Tennessee.

Without marriage, the paramour prohibitionists maintain, the estranged parent's relationships will be too many, too casual, too temporary, and too much for children to handle. Because they can't distinguish in advance what will be a "good and stable" relationship, many judges have opted to include in the parenting plans they approve provisions barring any unwed adult from sleeping in a divorced parent's home.

Despite the psychologist's professional recommendation in the Chandler case, Ellis had ruled against her on grounds that her live-in partnership arrangement would violate Tennessee public policy. Three Appeals Court judges — J. Steven Stafford, who wrote the opinion, and Alan E. Highers and David Farmer, who joined in the opinion — disagreed, saying that not all paramour relationships are necessarily adverse to the best interests of the divorced parent's children and should not be universally banned by Tennessee's divorce court judges.

The Appeals Court decision works for Chandler, her partner, and her children, but this is a baby step in what could be a drastic change in the way courts handle parenting plans.

The ruling makes it clear that divorced parents should not be completely barred from developing long-term relationships, whether or not they result in marriage. It recognizes the reality that people today often live together for years before tying the knot and that gay and lesbian couples in Tennessee cannot currently marry even if they wanted to.

There is certainly substance to the claim that a divorced parent having short-term, live-in lovers could hurt a child, but it would be wrong to assume that any relationship not consummated in marriage has such flighty attributes.

In the future, we may get to the point that paramour prohibitions are no longer employed in parenting plans.

The Court of Appeals' decision should make life much easier for divorced parents to get parenting plans approved which allow them to have stable, albeit unmarried, live-in relationships at the same time they have their children at home.

For divorced parents seeking to capitalize on this new decision, the road still isn't easy. As with any custody hearing, such parents will need to prove that they run an organized and nurturing home in the best interests of their children. It won't be easy, but at least now they have a better chance of winning.

This decision may not have swung the door wide open for court-approved relationships, but it certainly creates an opening.

Kenneth R. Besser is a Memphis attorney who handles divorce matters and estate planning for unmarried couples.

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