TN Cohabitation

[sometwo]

What is the name of your state (only U.S. law)? TN


Ohiogal did the research here. I had said before you can't do this in TN. I couldn't find things to back it up but OG did.

TN law in case that matters to anyone
In case the law actually does matter to anyone

--------------------------------------------------------------------------------

2008-TN-1222.357
McDaniel v. McDaniel

Quote:
Quote:
The continued relationship with the young live-in girlfriend indicated to the trial court that the child's best interests were not uppermost in Husband's mind.
and it stated this:

Quote:
Quote:
Based upon the testimony, when the father is working, either his mother or the eighteen year old live in girlfriend would care for the minor child. While the grandmother would be a very good and suitable care taker for the minor child, the court finds that the eighteen year old live in girlfriend would not make the most suitable care giver. The father's willingness to continue in that unmarried relationship while the custody litigation is pending indicates to the court that he is not considering the best interest of his minor child;
and this:

Quote:
Quote:
The trial court has broad discretion when making decisions regarding the designation of the primary residential parent and the determination of a parent's residential parenting time. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citation omitted). The best interest of the child is the most important concern in such cases, see Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); T.C.A. § 36-6-106 (2005 & Supp. 2008), and the determination of a child's best interest turns on the particular facts of each case. See Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995) (citation omitted). Therefore, "t is not the function of appellate courts to tweak a [parenting plan] in the hopes of achieving a more reasonable result than the trial court." Eldridge, 42 S.W.3d at 88.
Statute also states:

Quote:
Quote:
Section 106 provides:

The court shall consider all relevant factors, including the following, where applicable:
(1) The love, affection and emotional ties existing between the parents or caregivers and child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver 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, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1602, by one (1) parent, and that a non-perpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(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 (1) 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 to the evidence. 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 or caregiver and the person's interactions with the child; and
(10) Each parent or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and the both of the child's parents, consistent with the best interest of the child.
Cohabitation works into the above bolded factors.

And this case:2007-TN-1222.008
Birdwell v. Harris

Quote:
Although Father alleged other bases for modification of custody at the trial, on appeal he relies solely on Mother's non-compliance with the existing order's visitation provisions and her interference with his other rights.(fn2)

and Fn2 stated:

Quote:
2. At trial, Father claimed that Mother's cohabitation with Mr. Smith amounted to a material change of circumstances. In his testimony, Father asserted that he believed Mother's lifestyle was immoral. He admitted, however, that he himself had fathered J.A.B. out of wedlock, that he had sexual encounters with several other women while he was dating his current wife, and that he and she had lived together without benefit of marriage for several years before they finally married. He conceded that his own conduct prior to marriage was not dissimilar to the conduct he characterized as immoral in Mother.
Cohabitation MATTERS in TN. The caselaw backs that up as does statute.
__________________

 

[sometwo]

bumping this up for others to see

 

[stealth2]

And this couldn't be added to the thread the discussion/disagreement occurred because..... Why?

 

[TNBSMommy]

I was advised by my attorney years ago to marry my (now ex) husband for that very same reason.... My ex, even though he lived with his wife prior to marrying her had married by the time we were going to court.... all here in good old TN.


*Sorry Stealth, I don't know what other thread this was referred to in!*

 

[sometwo]

And this couldn't be added to the thread the discussion/disagreement occurred because..... Why?

because the OP wasn't in TN and I didn't want to confuse other posters

 

[sometwo]

I was advised by my attorney years ago to marry my (now ex) husband for that very same reason.... My ex, even though he lived with his wife prior to marrying her had married by the time we were going to court.... all here in good old TN.

yep they don't fault you if you marry them.

 

[TNBSMommy]

Thats what she told me, it didn't matter if he had co-habited too, the only thing that mattered was what was in effect the day of court, basically, and we were going to court for custody......


Funny enough, I took her advice, married him, went to court, my ex didn't even SHOW UP! He lost his visitation because of that, was over a year before he bothered to get it back.

 

[sometwo]

Thats what she told me, it didn't matter if he had co-habited too, the only thing that mattered was what was in effect the day of court, basically, and we were going to court for custody......


Funny enough, I took her advice, married him, went to court, my ex didn't even SHOW UP! He lost his visitation because of that, was over a year before he bothered to get it back.

We almost got married 2 months before our actual wedding date but weren't going to tell anyone unless it came up in court. That way we could still pretend it happened on the day we wanted lol

 

[CJane]

Sorry, try again.

Yeah, I'm being difficult, and I realize that. But it DOES matter, I totally agree with OG's statement there.

However, the caselaw, AS POSTED, deals 1) Specifically with whether or not the "18 year old live in girlfriend is a suitable caregiver while father is working" -- and says specifically that the custody litigation is PENDING. It was THOSE factors, not just the "live in girlfriend" that influenced the court's determination that Dad was not looking out for kiddo's best interests.

Based upon the testimony, when the father is working, either his mother or the eighteen year old live in girlfriend would care for the minor child. While the grandmother would be a very good and suitable care taker for the minor child, the court finds that the eighteen year old live in girlfriend would not make the most suitable care giver. The father's willingness to continue in that unmarried relationship while the custody litigation is pending indicates to the court that he is not considering the best interest of his minor child;

It's a no-brainer that in ANY STATE it's a bad idea to move in with your latest lover while you're still haggling over custody issues. NOT the same thing as caselaw that makes cohabitation with someone "illegal" or an "automatic" issue. Which is what was stated in the other thread.

And yes, I get that more often than not an attorney will tell you that it MIGHT be a bad idea to cohabitate, and that it CAN be considered a change in circumstances. But that is NOT the same thing as a law against it.

NOW ---

There ARE 7 states with laws still on the books against non-married cohabitation in ANY FORM regardless of whether or not there are children involved.

But in Florida, Michigan, Mississippi, North Carolina, North Dakota, Virginia and West Virginia, "lewd and lascivious" male-female cohabitation remains illegal, a reminder that in parts of the nation, the conservative past still rubs up against the more liberal present.

From: 7 States Still Classify Cohabitation as Illegal

HOWEVER, there's an update to that:

RICHMOND: Supreme Court on Friday struck down an ancient and rarely enforced state law prohibiting sex between unmarried people. The unanimous ruling strongly suggests that a separate anti-sodomy law also is unconstitutional, although that statute is not directly affected. The justices based their ruling on a U.S. Supreme Court decision voiding an anti-sodomy law in Texas.


****SNIP****

The court said, "decisions by married or unmarried persons regarding their intimate physical relationship are elements of their personal relationships that are entitled to due process protection."

Which means that there CANNOT BE an "automatic" anything regarding this in VA.

 

[starting over]

Which means that there CANNOT BE an "automatic" anything regarding this in VA.

I stand corrected, I should have checked to see if it had been "struck down" I lived in MD back in '04. An acquaintance of mine that lived in VA was in a battle over custody of her children for this very reason. I never followed up on the outcome, I just was aware that the laws were on the books.

 

[Ohiogal]

Sorry, try again.

Yeah, I'm being difficult, and I realize that. But it DOES matter, I totally agree with OG's statement there.

However, the caselaw, AS POSTED, deals 1) Specifically with whether or not the "18 year old live in girlfriend is a suitable caregiver while father is working" -- and says specifically that the custody litigation is PENDING. It was THOSE factors, not just the "live in girlfriend" that influenced the court's determination that Dad was not looking out for kiddo's best interests.



It's a no-brainer that in ANY STATE it's a bad idea to move in with your latest lover while you're still haggling over custody issues. NOT the same thing as caselaw that makes cohabitation with someone "illegal" or an "automatic" issue. Which is what was stated in the other thread.

And yes, I get that more often than not an attorney will tell you that it MIGHT be a bad idea to cohabitate, and that it CAN be considered a change in circumstances. But that is NOT the same thing as a law against it.

NOW ---

There ARE 7 states with laws still on the books against non-married cohabitation in ANY FORM regardless of whether or not there are children involved.



From: 7 States Still Classify Cohabitation as Illegal

HOWEVER, there's an update to that:



Which means that there CANNOT BE an "automatic" anything regarding this in VA.

I agree with that -- that Lawrence v. Texas could be used to overturn anti-cohabitation statutes. I agree. i have argued that actually on here.

 

[neopandora]

What is the name of your state (only U.S. law)? TN


Ohiogal did the research here. I had said before you can't do this in TN. I couldn't find things to back it up but OG did.

The trial court has broad discretion when making decisions regarding the designation of the primary residential parent and the determination of a parent's residential parenting time. See Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citation omitted). The best interest of the child is the most important concern in such cases, see Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997); T.C.A. § 36-6-106 (2005 & Supp. 2008), and the determination of a child's best interest turns on the particular facts of each case. See Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn. 1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995) (citation omitted). Therefore, "t is not the function of appellate courts to tweak a [parenting plan] in the hopes of achieving a more reasonable result than the trial court." Eldridge, 42 S.W.3d at 88.
Statute also states:

Quote:
Quote:
Section 106 provides:

The court shall consider all relevant factors, including the following, where applicable:
(1) The love, affection and emotional ties existing between the parents or caregivers and child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver 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, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1602, by one (1) parent, and that a non-perpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(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 (1) 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 to the evidence. 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 or caregiver and the person's interactions with the child; and
(10) Each parent or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and the both of the child's parents, consistent with the best interest of the child.
Cohabitation works into the above bolded factors.

I'm glad you brought this thread back up in the listing because I was the one who said in almost all TN judicial districts cohabitation does not automatically grant custody to the other party, or is cohabitation prohibited. There are a couple of judicial districts where it is frowned upon, but still not prohibited.

Custody in TN is based upon the 10 factors listed above if initial custody, if the issue of custody is being revisited, then you prove change of circustances before going any further and then you visit the factors. All things being equal, No. 1 is considered a given for both sides. That leaves you with 9. Consider those like a checklist. Who ever is best at each number, gets the checkmark. If you are both equal on a factor consider that a draw. Then total the factors and the parent exceeding the most factor categories is deemed primary parent.

Sounds really simple, but it actually becomes very complex. And the Judge, who has broad discretion - it's he/she who gives the checkmarks and tallies the total.

As CJane said, an attorney may tell you that cohabitation is a bad idea, but that's NOT the same as saying it's prohibited. Given any custody case an attorney may look at your situation and decide cohabitation may not give you enough of the 10 factors, or make it too close to risk it, particularly if it's a recent cohabitation. Cohabitation can put you at risk of losing #9 and #4. Maybe #3 if it's a recent development.

I personally cohabitated with a man once and he went for increased custody with his daughter and the Court had no problem with it and his parenting time increased from every other weekend to 50/50. In this case, I even asked the attorney point blank if we should get married. He said no. It would not make any diference. I have a son and that never affected anything with my custody.

I also know of at least half a dozen cases in TN right now where the PRP is cohabitating and trust me, if it wasn't allowed these cases would be slam dunks, but they are not. They are all chancery cases. In Juvenile Court, almost no one was married to begin with so I've never seen it matter there.

All things being equal, cohabitation alone doesn't matter except in a few isolated judicial districts. It almost always boils down to the character and stability of the parties more so than their marital status.

Even saw one case where a cohabitating mom married her boyfriend thinking that marriage would make her custody case a slam dunk. Trouble was, her boyfriend/husband was a major drug dealer, so all the Judge did was deny her custody request and order that she could never have her husband present for visits with her child.

 

[sometwo]

ok did some more searching. Found more recent stuff and not sure I understand correctly. Seniors help me out. I'm going to post it under the other thread also for future reference.

1) while the court finds both parents to be good, loving, and nurturing parents, the
testimony established that the mother has been the primary care giver of the minor
child. The court also notes that the paternal grandparents have been the primary care
givers while the minor child has been in the custody of the father; 2) the minor child,
whom is only two years of age, has lived primarily with her mother since birth. The
minor child knows her mother’s home to be her home and to move her from this
environment at this point in her life would be detrimental to the minor child; 3) the
fact that the father is living in an unmarried relationship with an eighteen year old
young woman weighs heavily in favor of the mother. Based upon the testimony,
when the father is working, either his mother or the eighteen year old live in
girlfriend would care for the minor child. While the grandmother would be a very
good and suitable care taker for the minor child, the court finds that the eighteen year
old live in girlfriend would not make the most suitable care giver. The father’s
willingness to continue in that unmarried relationship while the custody litigation is
pending indicates to the court that he is not considering the best interest of his minor
child; and 4) the court is aware that Tennessee Law does not follow the tender years
presumption, but it nevertheless does allow the court to consider this as a factor in
determining comparative fitness. The court finds in this particular case that the
minor child, two years of age, is better served by a bonding relationship with her
mother.

taken from:

http://www.tsc.state.tn.us/opinions/tca/PDF/084/McDanielALopn.pdf




Also this came from http://www.tsc.state.tn.us/geninfo/courts/localrules/28Local/RULES OF CHANCERY COURT 7-30-2009.pdf



Committee and other knowledgeable persons, finalized the form that can be found on the A. O. C. website at Tennessee Administrative Office of the Courts (under PROGRAMS) or copies of the Parenting Plan may be obtained from the Clerk’s offices. This court shall require under “J. OTHER” on the Parenting Plan, the following provisions:
“Any paramour of either parent to whom a parent is not legally married is not to spend the night in the presence of or in the same residence with any minor child of the parties. The parents shall not use any illegal drugs, consume any alcohol or allow any other person to use any illegal drugs or alcohol in the presence of the minor children.”

you can find that parenting plan here Untitled Document


There also seems to have been more recent cases on this issue


The AOC form is consistent with Rule 23:00 of the
Rules of Chancery Court for the 28th Judicial District ("Local
Rule 23"), which requires inclusion of the paramour provision
in the AOC permanent parenting plan form.

this from a case that was actually appealed this year

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Joseph Marion Barker v.Angel Chandler OPN.pdf



If I'm reading it right it looks like they are supposed to now put the no paramour order in the parenting plans.

However the court just appealed that this year from the looks of it. So does that mean the higher court is saying it doesn't need to be in there but the other courts are saying it does?

 

[acmb05]

ok did some more searching. Found more recent stuff and not sure I understand correctly. Seniors help me out. I'm going to post it under the other thread also for future reference.

1) while the court finds both parents to be good, loving, and nurturing parents, the
testimony established that the mother has been the primary care giver of the minor
child. The court also notes that the paternal grandparents have been the primary care
givers while the minor child has been in the custody of the father; 2) the minor child,
whom is only two years of age, has lived primarily with her mother since birth. The
minor child knows her mother’s home to be her home and to move her from this
environment at this point in her life would be detrimental to the minor child; 3) the
fact that the father is living in an unmarried relationship with an eighteen year old
young woman weighs heavily in favor of the mother. Based upon the testimony,
when the father is working, either his mother or the eighteen year old live in
girlfriend would care for the minor child. While the grandmother would be a very
good and suitable care taker for the minor child, the court finds that the eighteen year
old live in girlfriend would not make the most suitable care giver. The father’s
willingness to continue in that unmarried relationship while the custody litigation is
pending indicates to the court that he is not considering the best interest of his minor
child; and 4) the court is aware that Tennessee Law does not follow the tender years
presumption, but it nevertheless does allow the court to consider this as a factor in
determining comparative fitness. The court finds in this particular case that the
minor child, two years of age, is better served by a bonding relationship with her
mother.

taken from:

http://www.tsc.state.tn.us/opinions/tca/PDF/084/McDanielALopn.pdf

As I said, this case had more to do with the fact that the 18 year old girlfriend would be watching the child than it did with the fact that they were living together. The mother wanted the child to be with her while dad was at work. Dad wanted the girlfriend to watch kids.

Also this came from http://www.tsc.state.tn.us/geninfo/courts/localrules/28Local/RULES OF CHANCERY COURT 7-30-2009.pdf



Committee and other knowledgeable persons, finalized the form that can be found on the A. O. C. website at Tennessee Administrative Office of the Courts (under PROGRAMS) or copies of the Parenting Plan may be obtained from the Clerk’s offices. This court shall require under “J. OTHER” on the Parenting Plan, the following provisions:
“Any paramour of either parent to whom a parent is not legally married is not to spend the night in the presence of or in the same residence with any minor child of the parties. The parents shall not use any illegal drugs, consume any alcohol or allow any other person to use any illegal drugs or alcohol in the presence of the minor children.”

you can find that parenting plan here Untitled Document


There also seems to have been more recent cases on this issue


The AOC form is consistent with Rule 23:00 of the
Rules of Chancery Court for the 28th Judicial District ("Local
Rule 23"), which requires inclusion of the paramour provision
in the AOC permanent parenting plan form.

this from a case that was actually appealed this year

http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/102/Joseph Marion Barker v.Angel Chandler OPN.pdf



If I'm reading it right it looks like they are supposed to now put the no paramour order in the parenting plans.

However the court just appealed that this year from the looks of it. So does that mean the higher court is saying it doesn't need to be in there but the other courts are saying it does?

This has been going back and forth in courts for a couple years in Tennessee. It was required to be put in all parenting plans at one time. Now they still have it on the books as that way but if challenged it is normally taken out. In the second case it was actually removed from the parenting plan.

You will find judges that frown on it but for the most part they just don't care unless it is effecting the children.

 

[sometwo]

This has been going back and forth in courts for a couple years in Tennessee. It was required to be put in all parenting plans at one time. Now they still have it on the books as that way but if challenged it is normally taken out. In the second case it was actually removed from the parenting plan.

You will find judges that frown on it but for the most part they just don't care unless it is effecting the children.

Then I think its safe to say it could still very well affect custody/visitation outcome. It depends on the judge and area. I don't think its safe to say it won't affect outcome at all ever. Which is what I felt you were implying. Although you felt I was implying that it always was and I didn't say that.

I looked up all that because its been years since my husband had to deal with any of those issues ( and at the time he did it was very much an issue) and I wanted to see if there were recent articles.