When I wrote last fall about Angel Chandler's successful appeal from a provision in her custody decree prohibiting her from having a "paramour" overnight in her home while her children were there, I thought that would be the end of it. Silly me.
The Tennessee Court of Appeals sent Angel's case back to the trial court for a hearing on what the children's best interests required, and the judge once again imposed the "paramour provision." There was no evidence to support this provision, which the children's father took no position on. In fact, there was evidence that the restriction was against the children's interests, as the children had a good relationship with their mother's female partner. Nonetheless, the trial judge, including the restriction on his own, reasoned that "a paramour overnight, abuse of alcohol and abuse of 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."
Well, this week the Tennessee appeals court once again reversed the trial court. It's frustrating that this mother had to go through two appeals to achieve this result, and Tennessee gay family law expert Abby Rubenfeld thinks it's not a huge win in the long run because the court doesn't throw out such restrictions altogether. But requiring evidence of harm before imposing such a restriction may be the best anyone can hope for in state that's not especially welcoming of gay and lesbian parents.
This case reminds me of Boswell v. Boswell which I litigated in Maryland in the late 1990's. A trial judge prohibited the gay father from having his children overnight when his partner was present. The mother had not requested the restriction, but she defended it through two levels of appeal all the way to Maryland's highest court. The court overturned the restriction.
At the time, I argued that the court needed to find an adverse impact on the child before restricting visitation, and that is what the court held. Since then, I've changed my mind about the optimal analysis; I would like to argue that the presence of a parent's partner can never have an adverse impact on a child. Sure, the partner may pose a problem for a child, but so can a heterosexual step-parent. Whenever anything in a parent's life is harming a child the court is allowed to consider that, and there shouldn't be a standard specfically carved out for same-sex or non-marital partners. Nonetheless, the "adverse impact" standard is easier to argue, and when there is no case law going even that far, it's to be expected that an advocate will go that route.
If I get a chance make the better argument in a court that might be receptive to it, I'll go for it. In the meantime, a ruling like Baker v. Chandler still counts as a victory.