Trial Court Modified Agreed Parenting Plan by Adding Injunction – “No Homosexual Activity Around Children”; Sumner County Chancery Court Reversed


Brantley v. Brantley (Tenn.Ct.App., filed September 15, 2017).  Appeal from Sumner County Chancery Court.


Trial Court:   Father filed a pro se complaint for divorce from Mother in the Sumner County Chancery Court. Two children were born during the marriage. Mother did not contest the divorce.

The trial court conducted a hearing to consider and either approve or reject the Final Decree of Divorce that incorporated the agreed upon Marital Dissolution Agreement and Permanent Parenting Plan. During the hearing, the court heard from both parties who revealed, inter alia, that Father was HIV positive and in a relationship with a male paramour. At the conclusion of the hearing, the court modified the Final Decree of Divorce by adding handwritten “Injunctions by Court” that read:

No corporal punishment of children by either party. No paramours overnight and paternal uncle may not be around children. No homosexual activity around children. Father to avoid body fluid exchange with children, no bathing, showering or sleeping with children. Children exchanged at Rivergate Mall unless parties agree otherwise. Father may have no paramours around children whatsoever.

Court of Appeals:   Father filed a timely appeal and sought reversal of  the above injunction.  The Court of Appeals determined the trial court made substantive and material changes to the parties’ agreement without affording Father due process of law.

Here, the court issued a series of injunctions restraining Father’s liberty. Under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 8 of the Tennessee Constitution, the government may not deprive an individual of life, liberty, or property without due process of law.  Due process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.  When a court’s determination turns on a question of fact, the court must give litigants the chance to present evidence and to confront adverse witnesses.

Due process also requires appropriate notice in order to afford the litigant the opportunity to be prepared to present evidence in addition to the opportunity for a meaningful hearing.  “The notice required by the Due Process Clause is that which is ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’”  Therefore, to comport with due process, the trial court should have afforded Father and Mother notice so they could be prepared to present competent evidence. That was not done in this case. Therefore, the judgment of the trial court must be vacated.

On remand, the Court of Appeals wrote that the trial court should consider the ruling in Hogue v. Hogue, 147 S.W.3d 245, 254 (Tenn. Ct. App. 2004) before imposing generalized “paramour” and “lifestyle” restrictions.  The Court in Hogue wrote that:

Moreover, it is not necessary to create new and different visitation rules and restraints depending on sexual orientation. Visitation decisions should be guided by the best interests of the child. Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995). Generally, it matters little who the parent is or what he or she does when the child is not visiting. What matters is whether the parental conduct during visitation is harmful to the child. See Smith v. Smith, 1996 WL 591181, at *4 (father was prohibited from smoking only during visitation). Neither gay parents nor heterosexual parents have special rights. They are subject to the same laws, the same restrictions. Our courts should follow the same principles for placing restrictions on gay parents they use on any parents; those principles provide that after making an award of custody, the trial courts are to 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 that visitation is likely to endanger the child’s physical or emotional health.

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