As is so often, you can read about the case on Professor Arthur Leonard’s blog. The facts are fairly simple. Angel Chandler and Joseph Barker had been married. They had two children who are now 16 and 14. An affair by Joseph Barker lead to a 1998 divorce. By agreement, Angel Chandler was designated as the primary custodial parent for one child (a daughter) and Joseph Barker was designated as primary custodial parent for the other (a son).
About a year after the divorce Angel Chandler began a relationship with a woman. They now live together. In addition, Joseph Barker married the woman he had had an affair with. Over the years there were various modifications in the custody arrangement, generally by agreement of the parties. In 2007, however, the parties ended up in court again. This time, when an agreement was reached, the court used a Tennessee form to record it. The form contained what it calls “a paramour provision.”
The paramour provision meant that neither mother nor father could spend the night with a romantic partner while one of the children was in the household. Since the father had married his one-time lover, this did not matter for him. But since the mother could not marry her female partner, she was not allowed to spend the night with her when the children were in the home.
It’s worth noting that the provision was not added at the request of the husband and even the court didn’t seem particularly approving of it. Rather the trial court apparently believed the provision was required in all parenting plans. Thus, the court made no finding about whether it was of any value in this case. And it is essentially on that basis that the appellate court overruled the trial court. The case was then sent back for the trial court to consider whether the provision was important.
The case, to my mind, illustrates two points. One is fairly obvious. The imposition of a paramour provision cannot be even-handed. Because Tennessee will not recognize marriage between parties of the same sex, lesbians and gay men can only live with their children if they do not live with their partners. No matter how stable their relationships, they will be deemed non-marital. Thus, yet again marriage and parenthood become twist together.
There’s also a second point here, which is applicable to parents in general and therefore probably more important. The case illustrates the way in which once one is a parent, one may be subject to state control. Because the state asserts a legitimate interest in the well-being of children, it can place restrictions on a parent’s freedom that would otherwise be unthinkable.
While the state’s interest is indeed a legitimate one–we all share an interest in the well-being of children–the actual exercise of that interest often rests with individual judge’s. And while the judge in this case may have thought that his hands were tied by Tennessee practice, judge typically have have wide discretion. Parental sexuality often catches the court’s attention, partly because of our general desire to separate children from any taint of sexuality. This concern justified harsh and unwarranted treatment for lesbian and gay parents for well over a generation.
There’s a similar issue of control by another parent, and this is part of why I resist the notion of a sperm donor being recognized as a legal parent in the discussion earlier in the week. But whether it be control by another parent or control by a state, gaining recognition as a legal parent will often bring with it a certain degree of diminished freedom. It may well be that this is, in general, as it should be. But it is worth paying attention to the ways in which control is exercised.