                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                             Assigned on Briefs June 8, 2010

              JOSEPH MARION BARKER v. ANGEL CHANDLER

              Direct Appeal from the Chancery Court for Gibson County
                        No. 16976     George R. Ellis, Judge


                  No. W2010-01151-COA-R3-CV - Filed June 29, 2010


This is the second appeal from a parenting plan entered by the trial court. The only issue in
both appeals involved the necessity of a “paramour provision” in the parenting plan. On
remand from the first appeal, the trial court was directed by this Court to determine whether
a paramour provision was in the best interests of the children. After a hearing, the trial court
determined that it was in the best interests of the children to have a paramour provision in
effect. Mother appealed. After reviewing the record, we find that the trial court abused its
discretion by requiring a paramour provision as the record is devoid of any evidence to
support a finding that the paramour provision is in the best interests of the children.
Reversed.

 Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Reversed


J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Lucian T. Pera, Brian S. Faughnan, Memphis, Tennessee; Christine P. Sun, New York, New
York; Tricia R. Herzfeld, Nashville, Tennessee, for the appellant, Angel Chandler.

No Appellee Brief was filed.


                                          OPINION

        This is the second appeal in this case involving the trial court’s refusal to eliminate
an overnight paramour restriction from the parties parenting plan. The facts as stated in the
first appeal and supported by the record in this appeal are as follows:
                          [Appellant] Angel Chandler ("Mother") and [Appellee]
                   Joseph Marion Barker ("Father") were married in February
                   1992. They had two children during the marriage, Z.B., born
                   April 9, 1993 ("Son"), and C.B., born May 10, 1995
                   ("Daughter"). After Father engaged in an extramarital affair
                   with his now-current wife, Mother filed a petition for divorce.
                   In November 1998, the trial court entered a final decree of
                   divorce, in which Mother was designated as the primary
                   residential parent of Daughter, and Father was designated as the
                   primary residential parent of Son. Each parent had regular
                   parenting time with the child who lived with the other parent.
                   This parenting plan did not include any provision restricting the
                   parents from having any person present, overnight or otherwise,
                   while the child resided with the parent.

                           About a year after the divorce, Mother began a
                   relationship with a same-sex partner, M.C., with whom she now
                   lives.1 At some point, Father married his current wife. In January
                   2001, upon agreement of the parties, the trial court modified the
                   parenting plan to designate Mother as the primary residential
                   parent of Son as well as Daughter. This modified parenting plan
                   likewise did not prohibit the parties from having an overnight
                   paramour in the presence of the children.

                          In August 2002, Mother moved to North Carolina with
                   her partner M.C.2 At that time, Mother and Father agreed that
                   Father would be the primary residential parent for the children.3
                   Several years later, Mother moved back to Trenton, Gibson
                   County, Tennessee, where Father lived along with his wife
                   ("Stepmother") and the children. Mother's partner, M.C., lived
                   in both North Carolina and in Trenton with Mother, "splitting
                   time" between the two states.


        1
            Non-parties in this lawsuit will not be referred to by their full names because of privacy concerns.
        2
        Though the court documents indicate that Mother moved to Vermont, Mother reported that she in
fact moved to North Carolina.
        3
        Mother indicated that, at the time she moved, the parties had agreed that the children would join her
when she was settled in North Carolina, but that Father subsequently "had gone back on his word."


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       After Mother moved back to Tennessee, on May 22,
2007, Father filed a petition to modify the parties' parenting
plan. Mother filed a counter-petition for modification. On
November 19, 2007, the trial court entered a consent order
requiring all of the parties involved -- Father, Mother,
Stepmother, M.C., and the two children -- to make themselves
available for psychological evaluations and testing. The trial
court also ordered that, pending final resolution, Father would
be the primary residential parent of Son, and Mother would be
the primary residential parent of Daughter.

        The court-ordered evaluations were conducted by clinical
psychologist David Pickering, Ph.D. ("Dr. Pickering"). On May
1, 2008, after completing the evaluations, Dr. Pickering
submitted his report to the trial court. The report detailed the
results of the mental status examinations and psychological
testing for each subject, as well as observations about the
parties' interactions with their respective partners and with the
children. The report indicated that Son had a positive
relationship with both parents, as well as Stepmother and M.C.
The report also indicated that Daughter had a positive
relationship with Mother and M.C., and that she had a fair
relationship with Father. However, Dr. Pickering had substantial
criticism of Stepmother and her parenting of Daughter, and he
indicated that, unfortunately, Father tended to follow
Stepmother's lead with Daughter. He characterized Daughter's
relationship with Stepmother as quite problematic. Dr. Pickering
indicated that Daughter suffered from depression stemming
from her difficult relationship with Stepmother and opined that
requiring Daughter to continue to reside with Stepmother would
cause Daughter's emotional condition to further deteriorate.

       In the conclusion of his report, Dr. Pickering
recommended that Father remain the primary residential parent
of Son, and that Mother remain the primary residential parent of
Daughter. He noted that this arrangement would expose
Daughter to Mother's paramour (M.C.) when she stayed at
Mother's home and weighed this against the potential damage to
Daughter's mental and emotional state from continuing to reside
with Stepmother:

                               -3-
       Father is married to [Stepmother], so [Daughter]
       and [Son] are not exposed to any paramours at
       their father's home. However, since [Mother] is
       involved in a same sex relationship, and the State
       of Tennessee does not allow or recognize either
       same sex marriage or civil unions, their exposure
       to [M.C.], by definition, involves exposure to
       their mother's paramour. [Son] has positive
       relationships with all adults in this evaluation, and
       there appears to be no reason living with one
       parent would be better for him than living with
       the other. However, [Daughter's] relationship with
       [Stepmother] is so extremely negative, and
       [Stepmother's] actions toward [Daughter], no
       matter how good intentioned, appear to be
       exacerbating her depression, and could also be
       encouraging [Daughter] to behave negatively as
       an oppositional response to demands she
       perceives from [Father]. If [Daughter] were to
       live with [Father and Stepmother], it is likely the
       situation will deteriorate further, rather than
       improve. It is therefore recommended that the
       children's wishes guide the resolution of this
       situation. I would recommend placement with
       [Father and Stepmother] for [Son], and with
       [Mother] for [Daughter].

Dr. Pickering recommended liberal visitation for each parent
and suggested that the children should be allowed to have
frequent visitation together in the same household. He cited
research showing no adverse impact on children living with
parents with same-sex partners, and he indicated that the trial
court would need to address issues involving the cohabitation of
Mother and M.C. "It will be for the court to decide [issues]
concerning [M.C.], due to the paramour clause in most visitation
orders. However, current results do indicate [M.C.] is a positive
parent surrogate for both children, and has appropriate
relationships with them both."

       On May 15, 2008, a hearing was conducted on the

                                -4-
parties' motions for modification of the parenting plan. Dr.
Pickering's report was submitted to the trial court for review and
was entered into evidence. The parties told the trial court that
they had agreed to follow the recommendations in Dr.
Pickering's report regarding the shared parenting provisions.
Accordingly, they completed a standard form permanent
parenting plan, developed by Tennessee's Administrative Office
of the Courts ("AOC"), setting out the terms of the residential
schedules for the children. This form included what is known as
a "paramour provision," stating that "[a]ny paramour of any
parent and that parent are not to spend the night in the same
residence when that parent and one of the minor children are
present." The AOC form is consistent with Rule 23:00 of the
Rules of Chancery Court for the 28th Judicial District ("Local
Rule 23"), which requires inclusion of the paramour provision
in the AOC permanent parenting plan form.

        Although Mother generally agreed with the permanent
parenting plan, she objected to the inclusion of the paramour
provision, given that M.C. lived with her in her home. The trial
court noted Mother's objection but insisted that the paramour
provision remain intact "like all in the rest of [parenting plans
in] the state of Tennessee." The trial court clarified that "we're
not talking about adverse impact [on the children] . . . . We're
not going to make a distinction between paramours of one sex
or the other." The trial court added, "I'm not saying that
[Mother] and [M.C.] cannot be together. I'm specifically saying
that they cannot sleep together while a child is in the house. . .
. Apparently, Dr. Pickering found [M.C.] to be a positive
influence. The issue is paramour overnight." The trial court
reiterated, "I think that's a policy across the state of Tennessee.
I don't know any Judge in this state that does not preclude
paramours overnight when the children are present in the home."
The trial court commented that, "if there's a reason not to put
that in a permanent parenting plan, this will have to come from
the wisdom of our appellate courts."

       Within weeks after the hearing, Mother and Daughter
moved back to live with M.C. in North Carolina. Naturally, this
relocation altered the parties' parenting arrangements and also

                                -5-
                hindered the ability of Son and Daughter to see each other. The
                parties continued to agree that Mother would be the primary
                residential parent for Daughter, and Father agreed to Daughter's
                relocation to North Carolina with Mother. As before, the parties
                completed a parenting plan setting out the terms of the children's
                residential schedules. On September 4, 2008, the trial court
                entered an order consistent with the parties' agreement, and on
                October 2, 2008, it signed the new parenting plan. The final
                order and the parenting plan both included the paramour
                provision to which Mother had objected at the May 15, 2008
                hearing. The order stated that, "as a matter of law, the paramour
                clause is required by the laws and public policy of the State of
                Tennessee . . . ." The trial court noted in its order that Mother
                reserved the right to challenge on appeal the inclusion of the
                paramour provision based on her view that such a provision is
                not required as a matter of law and that, in the alternative if such
                a provision is required, it violates her constitutional rights to
                equal protection, privacy, and due process.

Barker v. Chandler, No. W2008-0225-COA-R3-CV, 2009 WL 2986105 at *1-4, (Tenn. Ct.
App. Sept. 18, 2009).

       This Court reviewed the trial court’s decision to include a paramour provision in the
parties’ parenting plan, based upon its finding that it was required by law to include such a
provision. Id. In the first appeal, this Court held that “the trial court was not required to
include the paramour provision in the permanent parenting plan” and directed the trial court
to consider Mother’s argument in light of our finding, considering the best interests of the
children. Id. at *5.

      Upon remand, the trial court held a hearing on March 24, 2010. At this hearing,
counsel for both parties announced to the trial court that since the original appeal, the parties
had modified the parenting plan by agreement.4 Under the new plan, Father would be the
primary residential parent for both children. Mother would have parenting time either during


        4
         We recognize that a copy of the modified parenting plan does not appear in the record. However,
the terms of the modified parenting plan are undisputed and appear in the transcript from the March 24, 2010
hearing. On June 2, 2008, this Court entered an Order granting Mother’s motion to suspend the Rules of
Appellate Procedure pursuant to TN. R. App. P. 2 and directed the trial court to file a supplemental record
containing (1) a transcript from the December 3, 2009 hearing, and (2) the May 10, 2010 order with its
attached and incorporated transcript from the March 24, 2010 hearing.

                                                    -6-
fall or spring break, one week at Christmas, and for the month of June. The Daughter had
returned to Tennessee at the beginning of the school year to live with Father. Mother
testified that Daughter had returned to Tennessee in order to attend the school she knew and
be with her friends. Further, Mother testified that the paramour provision had caused
significant financial hardship on her family and had prevented her children from visiting her
at her home since July 2009. Mother testified that she and M.C. had maintained separate
residences due to the paramour provision, but could no longer do so because of the cost.
Mother also testified that the separate residences disrupted her “family unit” which she
defined to include herself, M.C., and her two children. Also, Mother testified that because
of the paramour provision, she had to stay with a relative in Tennessee when exercising her
visitation. Mother explained that she thought M.C. was a positive influence on the children.
Father chose not to testify at this hearing and in fact, did not offer any proof. However, the
trial court stated that it wanted to hear from Father and accordingly, Father testified. Father
testified that he did not think the paramour provision was enforceable as long as Mother lived
in North Carolina. Other than the enforcement issue, Father did take a position as to the
paramour provision or testify to any harm which would be caused if there was not a paramour
provision in effect. Further, Father testified that the children pretty much decide when they
want to visit their Mother and indicated that he had no objection to them seeing their Mother
whenever they want. Moreover, at trial Dr. Pickering’s report, previously discussed, was
entered into evidence.

      Following the conclusion of proof, the trial court ruled from the bench. The trial court
found that it was in the best interests of the children that the parenting plan contain a
paramour provision. As stated by the trial court:

              In the state of Tennessee the best interest of the child is
              paramount. We must respect the child and acknowledge that
              they are most vulnerable parties in the proceedings; thus
              regardless of circumstances their best interest must be the
              central concern. It is of great concern to this Court that
              [Daughter] returned to the home of her father after staying with
              [Mother] until July 2009 after her formerly strongly-held views
              as reported by the evaluation of Dr. Pickering. See Exhibit 1.

                     Court finds that though [Mother] found the paramour
              clause to be inconvenient and had no concerns if her former
              husband should have a paramour overnight with his children
              present, the Court finds that the admonition in the other section
              of the permanent parenting plan is in the best interest of the
              children. A paramour overnight, abuse of alcohol and abuse of

                                              -7-
                 drugs are clearly common sense understanding that children can
                 be adversely affected by such exposure, as found from the
                 legions of cases in the state of Tennessee.

An order was entered reflecting this decision and incorporating by reference the transcript
on May 10, 2010.

        Mother appeals from the trial court’s decision and raises one issue for our review:

                 Whether the trial court, on remand from this Court, erred as a
                 matter of law and infringed upon Mrs. Chandler’s constitutional
                 rights by continuing to impose, sua sponte, an overnight
                 “paramour” restriction despite undisputed evidence that the
                 restriction is contrary to the best interests of the children and
                 despite the absence of any evidence in the record that would
                 support a conclusion that such a restriction is in the best interests
                 of the children?

                                                                         5
We note that Father chose not to participate in this appeal.

                                          Standard of Review

        This court hesitates to second-guess a trial court’s determination regarding parenting
schedules. Small v. Small, No. M2009-00248-COA-R3-CV, 2010 WL 334637 (Tenn. Ct.
App. Jan 28, 2010)(citing Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999)). “Trial
courts have broad discretion in devising permanent parenting plans.... In reaching such
decisions the courts should consider the unique circumstances of each case.” Burton v.
Burton, No. E2007-02904-COA-R3-CV, 2009 WL 302301, at *1 (Tenn. Ct. App. Reb. 9,
2009)(citing Parker, 986 S.W.2d at 563). In making these decisions, the paramount interest
of the court is the welfare of the child. Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App.
1993). As stated in the first appeal, “Tennessee courts have long held that the best interest
of the child is the single most important factor in matters involving parenting time and
visitation....” Barker, 2009 WL 2986105 at *5 (citations omitted). We will not reverse the
trial court’s decision absent an abuse of discretion. Suttles v. Suttles, 748 S.W.2d 427, 429
(Tenn. 1988)(quoting Edwards v. Edwards, 501 S.W.2d 286, 291 (Tenn. Ct. App. 1973)).
A trial court abuses its discretion “when it ‘applie[s] an incorrect legal standard, or reache[s]
a decision which is against logic to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d


        5
         Father chose not to file an Appellee brief. He did provide a letter this the Court stating that he was
not participating in this appeal.

                                                     -8-
82, 85 (Tenn. 2001) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

                                           Analysis

        After reviewing the record, we find that the trial court abused its discretion in
requiring the paramour provision. The record is devoid of any evidence whatsoever to
support the finding that a paramour provision is in the best interests of the children. In fact,
the record contains evidence demonstrating that a paramour provision is contrary to the best
interests of the children. Mother testified that she has not been able to visit with the children
at her home since July 2009 due to the paramour provision currently in effect. Mother
testified that under the previous custody arrangement, the children would stay overnight
while she and M.C. were living together in Tennessee and that the children never expressed
any concerns about the situation. Moreover, Dr. Pickering, after interviewing Mother,
Father, Daughter, Son, Step-Mother, and M.C, and observing them together, stated in his
report that both Daughter and Son view their relationship with M.C. as typical of adolescents
with their parent/parent surrogate. After observing Mother, M.C., Daughter and Son
together, Dr. Pickering found that both children interacted well with M.C., and that she
“interact[ed] with them in a positive and supportive manner.” Further, in comparing
Stepmother and M.C., Dr. Pickering found that M.C was the better “surrogate parent.” As
stated by Dr. Pickering, M.C. “appears to be emotionally stable and capable of providing
appropriate support and nurturing to the children and to [Mother]. Conversely, Dr. Pickering
found that Stepmother “tended to deny even minor problems, tended to be demanding and
immature, and self-centered.” Dr. Pickering also found that M.C.’s training in the area of
social work was a positive factor. Dr. Pickering found that both Mother and M.C. interact
more positively with both children than Father and Stepmother. Dr. Pickering recognized
that M.C. was a paramour, but did not recommend restricting visitation in any manner.
Instead, Dr. Pickering found M.C. to be “a positive parent surrogate for both children, and
has appropriate relationships with them both. Further, research indicates that children raised
in homes with same sex parents/parent surrogates tend to develop normal social relationships,
and are no more likely to display same sex sexual orientation than children raised in more
traditional two parent homes.” Father did not produce any evidence that a paramour
provision was in the best interests of the children. We recognize the trial court’s concern
with Daughter’s return to Tennessee to live with her Father. However, other than the trial
court’s comments, there is nothing in the record to indicate that she returned home for any
reason other than to attend her previous school and be with her friends.

        Finding the record completely devoid of any evidence demonstrating that the
paramour provision is in the best interests of the children or that the presence of Mother’s
partner in the home has any harmful effect on the children, we find that the trial court abused
its discretion. See Small v. Small, 2010 WL 334637 at *19 (finding that the trial court

                                               -9-
abused its discretion by imposing a restriction prohibiting father’s paramour from coming
into contact with the child as there was no evidence of harm to the child). Therefore, we
reverse the decision of the trial court finding that it is in the best interests of the children that
the parenting plan contain a “paramour provision.” Costs of this appeal are assessed to
Appellant, Angel Chandler and her surety for which execution may issue if necessary.




                                                       _________________________________

                                                       J. STEVEN STAFFORD, JUDGE




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