                               FILED
                              October 27, 1999

                             Cecil Crowson, Jr.
                            Appellate Court Clerk
                       IN THE COURT OF APPEALS
                             AT KNOXVILLE




ANTHONY KEITH ELDRIDGE                    )    SULLIVAN COUNTY
                                          )    03A01-9904-CH-00146
     Plaintiff-Appellant                  )
                                          )
                                          )
v.                                        )    HON. RICHARD E. LADD,
                                          )    CHANCELLOR
                                          )
JULIA EDITH ELDRIDGE                      )
                                          )    AFFIRMED IN PART,
     Defendant-Appellee                   )    MODIFIED IN PART and
                                 )        REMANDED




H. WAYNE GRAVES OF JOHNSON CITY FOR APPELLANT

MICHAEL MAY OF KINGSPORT FOR APPELLEE




                            O P I N I O N



                                                    Goddard, P.J.



         This is an appeal from the Chancery Court’s

visitation order which requires the minor daughter, Taylor

Eldridge, to visit overnight with her mother.               Anthony

Eldridge, Plaintiff-Appellant, raises the following issue:




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            Should, under the circumstances of this case, Taylor
            Eldridge be required to visit overnight with her
            mother in the presence of her mother and her lesbian
            partner, Lisa Franklin?

The trial court ordered overnight visitation without

prohibiting Ms. Franklin’s presence.

            On July 24, 1992, Anthony Eldridge was granted an

absolute divorce from Julia Eldridge for inappropriate marital

conduct.    The parties entered a Marital Dissolution Agreement

which provided for joint custody of their minor daughters,

Andrea and Taylor Eldridge.     For two years, the joint custody

arrangement was amicable.     Beginning in late 1994, the parties

could not agree on Ms. Eldridge’s visitation rights.     On

November 21, 1994 and February 16, 1995, Ms. Eldridge moved

the Chancery Court to set a specific visitation schedule.       Mr.

Eldridge responded to these motions by asking the Court to

award sole custody of the two minor children to him.     On July

17, 1995, the Court awarded sole custody of the two minor

children to Mr. Eldridge.     The Court ordered the parties and

the children to seek counseling.     Dr. James Granger became the

first counselor and Special Master to the Court on July 26,

1995.   Dr. Granger was unsuccessful in having the parties

reach an agreement regarding Ms. Eldridge’s visitation

schedule.



            On May 10, 1996, the Court appointed a Guardian ad

litem who filed a report with the Court.     On September 13,

1996, the Court set a specific visitation schedule which




                                                                      Page 2
included overnight visitation every other Saturday night

through Sunday.     Ms. Eldridge filed a motion on May 20, 1997,

to extend the overnight visitation to include Friday nights,

holidays and summer vacation.     Mr. Eldridge opposed expanded

overnight visitation.     On June 25, 1997, the Court changed the

visitation schedule by ordering overnight visitation every

other Friday night through Saturday evening.     The parties

continued having problems with the visitation schedule.



            Dr. Judy Millington began counseling the parties and

the minor children in August 1996.     Dr. Millington, as Special

Master to the Court, made recommendations regarding

visitation.     According to her recommendations, Taylor Eldridge

needed to extend visitation with Ms. Eldridge because a strong

mother-child relationship is in the best interests of Taylor

Eldridge.     In Dr. Millington’s report filed June 30, 1997, she

suggested that overnight visitation every other weekend should

be two nights instead of one night.     In the addendum to this

report, Dr. Millington stated: “on the continuum the best for

Taylor and Andrea would be to have visitation without Lisa

present, because the sexual orientation and modeling behavior

issues become less obvious and so less of an issue

parent-to-child in the future than it otherwise might be.”

However, Dr. Millington never made a recommendation to the

Court regarding Ms. Franklin’s presence during Taylor Eldridge’

s overnight visitation with Ms. Eldridge.      Instead, Dr.

Millington deferred to the Court for a decision on Ms. Franklin



                                                                    Page 3
’s presence during overnight visitation.



          A hearing was held on October 8, 1998 to resolve the

visitation problems.   At the hearing, Julia Eldridge testified

that she and Lisa Franklin had been together for almost five

years.   The house where Ms. Eldridge and Ms. Franklin live is

rented in Ms. Franklin’s name alone.   Ms. Eldridge testified

that Ms. Franklin maintained a separate bedroom and there had

been no sexual relationship between them for over a year prior

to the hearing.   On cross-examination, Ms. Eldridge testified

that neither she nor Ms. Franklin were dating anyone else.

Ms. Eldridge testified that she and Ms. Franklin were not

physically affectionate in Taylor’s presence.



          Lisa Franklin testified that she had maintained a

separate bedroom for three months prior to the hearing.       Ms.

Franklin testified that Taylor Eldridge acted happy with Ms.

Eldridge in her presence.   Ms. Franklin testified that she had

  a good relationship with Taylor Eldridge.



          Mr. Eldridge testified that overnight visitation

with Ms. Franklin present was not in Taylor Eldridge’s best

interests.   According to Mr. Eldridge, Taylor’s emotional

well-being was affected by her exposure to the relationship

between Ms. Eldridge and Ms. Franklin because this type of

relationship was contrary to Taylor’s moral beliefs.    Mr.

Eldridge testified that Taylor did not want overnight



                                                                    Page 4
visitation with Ms. Franklin present.



         Dr. Millington testified that she had not observed

any adverse effects on Taylor since she began overnight

visitation with Ms. Eldridge in Ms. Franklin’s presence.       Dr.

Millington described Taylor’s behavior around Ms. Eldridge as

very positive.   Dr. Millington testified that “for her best

interest overnight would not be required, but on the other

hand that I didn’t really think overnight would harm her

because I don’t think she’s going to see anything at Julie’s.”




         After the October 8, 1998 hearing, another

visitation schedule was set which included overnight

visitation.   Mr. Eldridge appeals the Court’s November 19,

1998 order setting visitation.



         The trial court possesses broad discretion in

determining a visitation arrangement.     See Suttles v. Suttles,

748 S.W.2d 427, 429 (Tenn. 1988).    We will not disturb the

trial court’s visitation order unless there is an abuse of

discretion.

See Suttles, 748 S.W.2d at 429.     We find the trial court

abused its discretion by not prohibiting Ms. Franklin’s

presence during the court-ordered overnight visitation.



         This Court addressed the issue raised by Mr.



                                                                     Page 5
Eldridge in Dailey v. Dailey, 635 S.W.2d 391 (Tenn. Ct. App.

1982).    In Dailey, the Court raised the issue of overnight

visitation with the homosexual mother upon its own motion.        See

 Dailey, 635 S.W.2d at 395.    Finding “the proof in this record

could provide nothing but harmful effects on his life in the

future,” the Court modified Ms. Dailey’s visitation privileges

with her minor child.    Dailey, 635 S.W.2d at 396 (emphasis

added).    Visitation was prohibited from occurring in the home

where Ms. Dailey lived with another woman, Peggy Maynard, or

in the presence of Ms. Maynard or “any other homosexual with

whom the Respondent may have a lesbian relationship.”     Dailey,

635 S.W.2d at 396.



           In modifying the visitation order, the Dailey Court

relied heavily upon the proof established in the record.       The

proof showed Ms. Dailey and Ms. Maynard were extremely

affectionate toward one another in the minor child’s presence.

 Dailey, 635 S.W.2d at 393.    Additional proof showed the child

was placed in bed with Ms. Dailey and Ms. Maynard while they

embraced in the nude.    Dailey, 635 S.W.2d at 393.   An expert

testified that harmful effects would occur from the minor

child being reared by the homosexual mother.    Dailey, 635

S.W.2d at 393-94.    Accordingly, the Court changed custody from

the mother to the father and modified the mother’s visitation

privileges.



           The facts of this case do not rise to the level of



                                                                        Page 6
harmful behavior displayed by the mother in Dailey.    Ms.

Eldridge and Ms. Franklin show no affection toward one another

in the presence of Taylor Eldridge.   In restricting overnight

visitation, we do not rely on the fact that Ms. Eldridge is a

lesbian.   The courts of Tennessee commonly place reasonable

restrictions on the visitation rights of heterosexual parents

who engage in sexual activity with partners with whom they are

not married.   See Price v. Price, an unreported opinion of

this Court, filed in Jackson on June 20, 1997 (prohibiting

both parents from having an overnight guest with whom the

parent is sexually involved while exercising overnight

visitation with minor child); Edwards v. Edwards, 501 S.W.2d

283 (Tenn. Ct. App. 1973)(prohibiting overnight visitation

with mother who was involved in extramarital relationship with

a man).



           We affirm the Chancery Court’s order requiring

overnight visitation between Taylor and Julia Eldridge, but we

modify the order by prohibiting the presence of Lisa Franklin

during the overnight visitation.   The judgment of the Trial

Court as modified is affirmed and the cause remanded for such

further proceedings, if any, as may be necessary and

collection of costs below.   Costs of appeal are adjudged

against Ms. Eldridge.




                                   Houston M. Goddard, P.J.




                                                                 Page 7
CONCUR:




Herschel P. Franks, J.




Charles D. Susano, Jr., J.




                             Page 8
