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Tennessee Appeals Court Restricts Parental Behavior in Abnormal Conservatorship Case
Posted by Martin Heller Potempa & Sheppard, PLLC on March 26, 2015
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In a drawn-out battle for conservatorship, the Tennessee Court of Appeals examined the issues of constitutional prior restraint and limitations on parental visitation and communications. The case of In Re Conservatorship of Turner involved a dispute that took place over the course of two years between the parents over the conservatorship of their adult son, who had Down Syndrome.
The parties had obtained a divorce in 1994, while they were residents of Texas. At first, the mother was granted primary custody of the parties’ two sons. However, several years later, the father was granted temporary custody of the children. This was the result of an incident involving substance abuse and domestic violence involving the children’s mother. Nearly 10 years later, the father was remarried and relocated to Tennessee. The son and his older brother moved with their father, even though each had reached the age of majority.
The father then moved again, to Michigan, while the sons’ mother remained a resident of Nashville, Tennessee. In 2011, the mother failed to return her younger son to the father’s custody after a visit, instead of bringing him back to Tennessee. She then filed a petition for an order of protection in a Tennessee state court. As the basis for her petition, the mother averred that the father was abusive to the son and would not allow him contact with his mother. The court found, after hearing the father’s account, that the mother’s allegations were untrue. The court dismissed the petition.
Issues again arose when the mother alleged that her son had been sexually assaulted by his older brother while in the care of their father. The trial court again held a hearing on the matter, in which it was held that the mother’s allegations were baseless. The court suspended visitation between the son and mother, with the exception of limited hours per month. Additionally, the court found that the mother had posted defamatory statements on social media. As such, the court restrained the mother from making claims about her older son committing criminal acts and enjoined her from conversing with her younger son about such claims. The court granted less than 10 hours of supervised visitation per month.
The mother appealed the decision, contending that the trial court’s injunction was an unconstitutional prior restraint on her free speech. Even though the mother had not previously raised this argument, the appellate court analyzed the issue. The appeals court found that the trial court had enjoined defamatory statements in order to protect both sons. The court then looked to decisions from other jurisdictions holding that defamatory speech is not protected by the First Amendment. The Tennessee Court of Appeals found that the injunction in the case at bar was narrow and applied only to prevent the mother from making further claims against her older son. In its proceedings, the trial court had found absolutely no support or foundation for the mother’s allegations. As such, the appellate court affirmed the trial court’s injunction.
Furthermore, the appeals court held that the trial court’s modification of the conservatorship was appropriate, allowing a limitation on the number of visitation hours and permission to record telephone conversations. This, according to the appeals court, preserved the son’s best interests.
If you or someone you know is experiencing difficulties establishing a conservatorship, or facing a visitation dispute, the Nashville conservatorship attorneys at Martin Heller Potempa & Sheppard can help. Our lawyers have considerable experience resolving these cases in the best interests of the child and family. For an initial consultation to discuss your case, contact us online or call (615) 800-7096.
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