After a hearing or trial adjudicating which parent is to be deemed primary residential parent with majority parenting time or such other amount of appropriate parenting time, the court is required to set out a visitation schedule for the other parent. More specifically, T.C.A. 36-6-301, “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.” If the child has been subjected to physical or emotional abuse, then the court may order supervised visitation or prohibit it until the abuse ceases or there is no reasonable likelihood that it will occur again.
Ordinarily, “the details of custody and visitation with children are peculiarly within the broad discretion of the trial judge.” Suttles v. Suttles, 748 S.W.2d at 429 (quoting Edwards v. Edwards, 501 S.W.2d 283 (Tenn. Ct. App. 1973). Public policy in Tennessee, as expressed by Tennessee Code Annotated § 36-6-301 and reiterated by considerable case law, is that “the non-custodial parent be awarded visitation reasonably sufficient to maintain the parent-child relationship.” Melvin v. Melvin, 415 S.W.3d 847, 851 (Tenn. Ct. App. 2011). The least restrictive visitation limits generally are favored in order to encourage the parent-child relationship.” (Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Resolving questions of parenting and visitation are among the most important decisions that our courts are called upon to make. Boyer v. Heimermann, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). In making such decisions, the needs of the child are paramount, with the desires of the parent being secondary. Chaffin v. Ellis, 211 S.W.3d at 286. Allocating residential parenting time or visitation to a non-custodial parent is generally favored in Tennessee, because “[a] child’s interests are well-served by a custody and visitation arrangement that promotes the development of relationships with both the custodial and non-custodial parent.” Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn. Ct. App. 1998). Additionally, “[t]he general assembly recognizes the fundamental importance of the parent child relationship to the welfare of the child, and the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests.” Tenn. Code Ann. § 36-6-401(a)
If the court requires supervised visitation or prohibits visitation, it must cite T.C.A. 36-6-301 or provide a legal basis for its decision. Furthermore, it must provide findings of fact applying the statutory custody factors enumerated at T.C.A. 36-6- 106(a)(1)-(15). See also In Re Jackson W. No. W2018-00629-COA-R3-JV, Tennessee Court of Appeals where order of the juvenile court was not affirmed and matter remanded back to the juvenile court to provide the legal basis and statutory factors. The court of appeals further found that juvenile court order did not set out a supervised visitation arrangement that was specific and unambiguous. Supervised visitation allows parents in high conflict or high risk situations access to their children in a safe and supervised environment. The noncustodial parent has access to the child only when supervised by another adult. Ordinarily this is limited in duration and scope until the particular risk cited as a basis for such supervision is no longer in effect. There are agencies that provide supervised parenting time services when a neutral location with heightened security and/or supervisions is warranted. Such supervision often occurs with another family member, friend of the family, social worker, or therapist.
Tennessee Code Annotated § 36-6-406(a) gives the court the power, however, to limit a parent’s residential time with his children if it determines “based upon a prior order or other reliable evidence” that the parent has engaged in certain conduct, including the refusal to perform parental responsibilities, willful abandonment, a conviction of sexual abuse, or “a pattern of emotional abuse of the parent, child or of another person living with that child.” (emphasis added). Tennessee Code Annotated § 36-6-406(d) includes another list of factors that would justify imposing a limitation on parental visitation. These include the following:
(1) A parent’s neglect or substantial nonperformance of parenting responsibilities;
(2) An emotional or physical impairment that interferes with the parent’s performance of parenting responsibilities as defined in § 36-6-402;
(3) An impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting responsibilities;
(4) The absence or substantial impairment of emotional ties between the parent and the child;
(5) The abusive use of conflict by the parent that creates the danger of damage to the child’s psychological development;
(6) A parent has withheld from the other parent access to the child for a protracted period without good cause;
(7) A parent’s criminal convictions as they relate to such parent’s ability to parent or to the welfare of the child; or
(8) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
A child cannot determine whether he or she will participate in parenting time with the parent awarded only visitation. The court of appeals have held “that in the absence of a specific finding that such visitation would harm the child, an order restricting visitation based solely on the preference of the child would be contrary to public policy.” Helson v. Cyrus, 989 S.W.2d 704, 708 (Tenn. Ct. App. 4 1998).
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