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Tennessee courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children. There are no reported or published opinions dealing with transgender parents. Tennessee courts have not granted custody or visitation rights to the non-biological parent of a child.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Tennessee courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the children.
Tennessee law states: “In a suit for annulment, divorce, separate maintenance or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable: (1) The love, affection and emotional ties existing between the parents and child; (2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that where there is a finding ... of child abuse ... or child sexual abuse ... by one parent, and that a non-perpetrating parent has relocated in order to flee the perpetrating parent, that such relocation shall not weigh against an award of custody; (4) The stability of the family unit of the parents; (5) The mental and physical health of the parents; (6) The home, school and community record of the child; (7) The reasonable preference of the child if 12 years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children; (8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that where there are allegations that one parent has committed child abuse … or child sexual abuse … against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected thereto. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings; (9) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; and (10) Each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child. …
“After making an award of custody, the court shall, upon request of the non-custodial parent, grant such rights of visitation as will enable the child and the non-custodial parent to maintain a parent-child relationship unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health. In granting any such rights of visitation, the court shall designate in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations and other special occasions. If the court finds that the non-custodial parent has physically or emotionally abused the child, the court may require that visitation be supervised or prohibited until such abuse has ceased or until there is no reasonable likelihood that such abuse will recur. The court may not order the department of children’s services to provide supervision of visitation pursuant to this section except in cases where the department is the petitioner or intervening petitioner in a case in which the custody or guardianship of a child is at issue.”
In a 2005 case, Berry v. Berry, the Tennessee court of appeals reiterated that a parent’s sexual orientation can only be used as a factor in custody and visitation determinations when there is evidence it has had or will have an effect on a child’s well-being in a meaningful way.
In a 2004 case, Hogue v. Hogue, a trial court had issued a restraining order prohibiting the father from “exposing the child to his gay lifestyle.” The father was held in contempt of the order for telling the child he was gay. The Court of Appeals struck down the restraining order on the grounds that it was contrary to a state law that required restraining orders to be “as specific as reasonably possible and to describe in reasonable detail the act that is restrained or enjoined.” The appeals court reaffirmed that the right of visitation may be limited or eliminated if there is definite evidence that to permit would jeopardize the child in either a physical or moral sense.
In a 2001 case, Eldridge v. Eldridge, the trial court allowed the mother unrestricted overnight visitation with the child. The appeals court held that the trial court had abused its discretion and imposed restrictions prohibiting the mother’s same-sex partner from being present during overnight visitation. The state Supreme Court found that the trial court evaluated all the evidence and determined that unrestricted overnight visitation was in the best interests of the child and there was no justification for the appeals court to overturn this ruling. There was no definite evidence that the daughter’s moral well-being would be jeopardized if unrestricted overnight visitation occurred.
In a 1995 case, In the Matter of Michael Lee Parsons, the lesbian mother was awarded custody and the father appealed, arguing he was more comparatively fit for custody because the mother was a lesbian. The Court of Appeals stated, “The lifestyle of parents is certainly a factor to consider in making a custody award. … This court does not sit as moral arbiters making judgments in what is acceptable social behavior, but we must consider a parent’s conduct to the extent the interest of the child is concerned. The criterion to be applied here is not whether the court approves of the lifestyle involved, but whether the child is located with the preferable custodial parent. … There simply is not proof in the record before us that the home environment provided by the mother … is comparatively less desirable than the home environment provided by father.”
In a 1988 case, Collins v. Collins, the mother and father agreed that the mother would have custody and the father would have reasonable visitation. Shortly after the divorce, the mother became a “practicing homosexual,” and the father petitioned to have custody modified. The court found that the “lifestyle” of the mother was not conducive to the best interests of the child and awarded custody to the father. It restricted the mother’s visitation, ruling that the child could not be around “her lesbian friend on an overnight basis.” The appeals court upheld this finding, stating that it did not find the mother to be unfit, only that the father was more fit.
In a 1981 case, Dailey v. Dailey, the mother had been granted custody of the child after the divorce. The father petitioned to have the custody modified because the mother had moved from the area to live with her same-sex partner. There was evidence that the mother “flagrantly flaunted her relationship with Peggy Maynard in the presence of the minor child.” The trial court changed custody to the father, with the mother having unrestricted visitation rights. The appeals court agreed with the change in custody and went further, holding that the mother should have conditions placed on her visitation: specifically, that the visitations could not happen in the home the mother shared with her partner, and that visitations could not be in the presence of the partner or any other “homosexual” with whom the mother may have a same-sex relationship.
Custody and Visitation for Transgender Parents
There are no reported or published opinions dealing with transgender parents.
Custody and Visitation for Same-Sex Co-Parents
Tennessee courts have not granted custody or visitation rights to the non-biological parent of a child.
A 1999 case, White v. Thompson, was a consolidated case that arose from two separate cases. In both cases a co-parent petitioned to have visitation with the biological child (born during the relationship) of their former same-sex partners. The appeals court affirmed the trial courts’ denial of the petitions, stating, “Tennessee law does not provide for any award of custody or visitation to a non-parent except as may be otherwise provided by our Legislature.” The Legislature had not defined “parent” in a manner that would include a former same-sex partner, and thus, the partners did not have standing to petition for visitation rights.
Citations: TENN. CODE ANN. §36-6-106; TENN. CODE ANN. §36-6-301; Berry v. Berry, 2005 Tenn. App. LEXIS 320 (Tenn. Ct. App. 2005); Hogue v. Hogue, 147 S.W. 3d 245 (Tenn. Ct. App. 2004); Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001); In the Matter of Michael Lee Parsons, 914 S.W.2d 889 (Tenn. Ct. App. 1995); Collins v. Collins, 1988 Tenn. App. LEXIS 123 (Tenn. Ct. App. 1988); Dailey v. Dailey, 635 S.W.2d 391 (Tenn. Ct. App. 1981); White v. Thompson, 11 S.W. 3d 913 (Tenn. Ct. App. 1999).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Updated: Wed, January 25, 2006 - 12:00:58
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