Grandparent Visitation Rights Law in Tennessee
Learn about Tennessee Grandparents’ Rights to See Their Grandchildren, Grandparent Visitation Law, Filing Grandparent Visitation Rights, and Grandparents’ Rights to Grandchildren.
Do you have need to know the current status of grandparent visitation rights law in Tennessee? Grandparents who desire an enduring relationship with their grandchildren often face difficulties. Increasing health and mobility issues are burdens we all shoulder as we get older, which can make chasing a lively youngster a real challenge, although a worthwhile one. Another difficulty, and the focus of this discussion, is a legal one. That is, what legal options do grandparent’s have available when the grandchild’s parents object to visitation?
Grandparents Rights to See Their Grandchildren
The specific reasons why a grandparent is denied access or refused visitation can vary considerably from one family to the next, but seldom is such refusal without emotional consequences. Here is the crux of the grandparent’s dilemma: When and how may Tennessee grandparents obtain court-ordered rights to see their grandchildren over the objections of one or both parents?
For answers, judges and experienced family lawyers look to Tennessee grandparent visitation rights law. This is the body of statutes and court cases that have developed around grandparent’s rights and how those rights may be asserted.
Grandparent Visitation Law
One common misconception is that grandparent visitation is the same as parenting time or is, perhaps, some lesser version of parenting time. That could not be further from the truth. Although both address access to a child, parenting time and grandparent visitation involve two distinct bodies of law. On the one hand, parenting time as court-ordered access to a specific child is only available to that child’s parents, biological or adoptive. On the other hand, grandparent visitation as court-ordered access to a specific child is awarded to the non-parent who is related by blood or adoption to both the child and a parent. In other words, grandparent visitation time is a unique form of non-parental access to a child and is different from visitation sought by aunts, uncles, cousins, or other family members.
Tennessee law surrounding grandparent visitation rights has been developing for more than 40 years, striving to keep pace with the ever-changing makeup of American families. For purposes of this discussion, families may be comprised of biological parents, same sex parents, widowed parents, step-parents, foster parents, and adoptive parents. The law has changed as the needs of these families have changed. Tennessee law today covers many of these familial configurations and, additionally, gives the court latitude to take into account other important factors relevant to the case before the court. Ultimately, the court’s final determination should be premised on two things: protecting the child from danger and doing what is in the child’s best interests.
No Guaranteed Grandparent Visitation While Parents Are Married
Grandparent visitations are not guaranteed. The parents of the child have the first say in whether or not grandparents may see the child. This is an established precedent in Tennessee grandparent visitation law.
In all areas of the law, court cases are important as both legal precedent and judicial interpretation – that is particularly so with the law of grandparental access rights. In the Tennessee cases discussed herein, the court has attempted to do what is in the best interest of the child, while balancing the fundamental rights of the parents against the rights of grandparents. Six key cases are briefly summarized below:
- Hawk v. Hawk, 855 S.W.2d (Tenn. 1993).
- Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995).
- Ellison v. Ellison, 994 S.W.2d 623 (Tenn. Ct. App. 1998).
- Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).
- Moorcroft v. Stuart (Tenn. Ct. App 2015).
- Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013).
To fully appreciate the courts’ interpretation and application of law to the facts, these cases are best read in conjunction with our discussion about Grandparent Visitation Rights in Tennessee which delves into the Tennessee statutes controlling grandparent access to visit the children. Covered therein is the step-by-step legal process set forth in T.C.A. § 36-6-306 (visitation rights of grandparents) and § 36-6-307 (determination of best interests of child for grandparent visitations).
Who Is a Grandparent?
The law gives three very clear definitions of a grandparent for the purposes of this visitation law only. They are the biological grandparents, the spouse of a biological grandparent, and the parent of an adoptive parent (this would include parents of a stepparent who adopted the child).
Before diving into the first case, also be mindful that great-grandparents are not treated differently under Tennessee law. A grandparent is a grandparent, regardless of generational distance. Grandfather (father of a parent), great-grandmother (mother of a grandparent), great-great-grandfather (grandparent of a grandparent) are all on equal footing with regard to standing and the right to petition for visitation. Other factors, such as advanced age, may be a factor for the court’s consideration. But age, in and of itself, is insufficient cause to reject an otherwise properly filed request for court-ordered visits with a grandchild.
Filing Grandparent Visitation Rights – Hawk v. Hawk
In the 1993 case known as Hawk v. Hawk, 855 S.W.2d (Tenn. 1993), the Tennessee Supreme Court ruled that there is a parental right to privacy. This right to privacy limits the court’s authority to interfere with the parents’ decisions regarding their children. In Hawk, the parents decided to prohibit the paternal grandfather from visiting his grandchildren. These were fit parents married to each other.
The grandparents went to court, basing their argument for why grandparent visitation should be awarded on an earlier Tennessee statute from 1971. That earlier statute guaranteed grandparents rights of visitation when in the best interests of the child. The Supreme Court found the statute lacking.
The Hawk court added a new condition before grandparent visitation could be granted, favoring the married, fit parents’ decision-making. When the parents are married to each other, are considered to be parentally fit by the court, and have had continuous custody of their children, then those parents have the legal right to decide the issue of grandparent visitation. Under those circumstances with the family intact and not divided by divorce, a dead or missing parent, or legal separation, the grandparents must first prove that their grandchildren would be harmed by the denial of visitation rights. Then, and only then, may the court interfere with the parents’ rights to make parental decisions regarding their own children.
Tennessee Grandparents Rights Law – Simmons v. Simmons
In a later case, Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), where the stepfather had adopted the child, the court upheld the same standard as in Hawk. In Simmons, the parents cut off visitation between the biological father’s parents and the child. The Tennessee Supreme Court held that only if there is a finding of substantial danger of harm to the child will the court intervene and, subsequently, determine whether grandparent visitations are in the best interests of the child.
Grandparents’ Rights to Grandchildren – Ellison v. Ellison
In 1998, the Court of Appeals made an important holding in Ellison v. Ellison, 994 S.W.2d 623 (Tenn. Ct. App. 1998), appeal denied. The court held that there must be a finding of a “danger of substantial harm to the child” before a trial court could consider the issue of whether grandparent visitation would be in the child’s best interests.
Why? Because to do otherwise would violate the parents’ privacy rights guaranteed by the Tennessee Constitution. The parental privacy right in question was the right to raise one’s own child without interference.
In 2000, the legislature amended T.C.A. § 36-6-306 to require that the trial court find a danger of substantial harm as a prerequisite to a determination of the child’s best interests. If there is no finding of a danger of substantial harm, then the court will not go on to the best interests question. It’s over.
Parents’ Fundamental Right to Raise Children – Troxel v. Granville
There is one U.S. Supreme Court case that we need also briefly discuss. That case is Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).
In Troxel v. Granville, the U.S. Supreme Court held that parents have a fundamental liberty interest in rearing their children as they deem appropriate without government interference. Government interference being a state statute that allowed the trial court to order grandparent visitation over the objection of a fit parent. This fundamental right is protected by the Due Process Clause of the U.S. Constitution.
After Troxel v. Granville, the law is settled in that the fit parents’ decision-making regarding their children’s upbringing should not be interfered with when the family is intact.
There are many Tennessee case examples summarized on our website. Although every case involves different facts and circumstances, past decisions can be very helpful in getting a feel for how these kinds of cases proceed. To read more, visit the Grandparents’ Visitation Rights category on our Tennessee Family Law Blog.
Claiming Grandparent Visitation Rights
According to Tennessee law, in certain cases only the grandparents who want visitation rights may request a court hearing if visits are being denied by the residential parents. As already noted, and worth repeating here, despite being denied access, grandparents have no right to request a hearing if, one, the parents are still married to each other or, two, there was a divorce followed by the step-parent legally adopting the child.
When can a grandparent request a hearing under Tennessee law? There are six situations giving rise to a grandparent’s right to request a visitation hearing under T.C.A. § 36-6-306.
Three situations relate to the parents themselves. The visitation hearing is necessitated in those families in which one parent has died; the parents are divorced, separated, or were never married; or one parent is missing and has been absent for at least six months.
Two situations relate to the grandparents themselves. In the first situation necessitating a visitation hearing, the child lived with the grandparents for at least 12 months before being removed by the parents. In the second situation, the child had a “significant existing relationship” with the grandparents for a year before the parents severed the association; and loss of that relationship is likely to be emotionally harmful for the child. Additionally, the grandparents pose no threat of abuse or danger of harm to the child.
In the two situations where the grandchild resided with the grandparents and in the situation where one parent is deceased and the decedent’s parents seek visitation rights, the court presumes that denying visitation will endanger the child.
One situation relates to a foreign visitation order. Lastly, if the court of a different state granted grandparent visitation to the petitioners, then those grandparents also have the right to request a visitation hearing in Tennessee court. The grandparent cannot simply register the foreign visitation order in Tennessee. Instead, he or she must seek access to the child under the Tennessee grandparent visitation statute (T.C.A. § 36-6-306). Moorcroft v. Stuart (Tenn. Ct. App. 2015).
Danger of Emotional Harm and the Child’s Best Interest
After evidence is presented at the hearing, the court must decide if the child is in danger of substantial harm should the relationship with his or her grandparents be prohibited.
Is there a danger of emotional harm to the child? Only three situations are considered to create a danger of emotional harm. First, the child had “such a significant existing relationship with the grandparent” that breaking it off is likely to inflict severe emotional harm on the child. Second, the grandparent functioned as the child’s primary caregiver; such that ending the relationship could result in the child’s daily needs not being met. This could cause a physical and emotional harm to the child. Third, the child had a significant existing relationship with the grandparent and ending that association may cause “other direct and substantial harm” to the child.
Was there a significant relationship between grandchild and grandparent? If, for a period of six months or more, the child either lived with the grandparent or the grandparent was the child’s full-time caregiver, then there was a significant relationship under Tennessee law. If, for a period of one year or more, the grandparent had frequent visits with the child, then there also was a significant relationship between those two family members.
If the court rules that there is no danger to the child if visitation is prohibited, then the issue of visitation is left to the parents and the court does not intervene. Should the court decide there is a “danger of substantial harm” to the child if grandparent visitations are denied, however, then the judge must further determine whether grandparent visitation is in the “best interests of the child.”
Is grandparent visitation in the child’s best interest? The Tennessee statute sets forth many factors the court should consider when determining the child’s “best interest.” But the judge has discretion to consider other relevant factors, too.
The statutory factors include inquiry into the length and quality of the relationship, the grandparent’s role in the child’s life, emotional ties between them, a child’s preference (assuming the child is mature enough), the parent’s relationship with the child’s grandparent, and whether the grandparent filed the petition in good faith. Judicial consideration is also given to families in divorce, where a spouse’s parenting time may be impacted, and to families where one parent is deceased or missing. In the best interest analysis, the judge will also consider any finding that a parent is unfit.
Again, for more detailed information on the application of the visitation statutes, look to the discussion on Grandparent Visitation Rights in Tennessee.
Expert Witness Testimony at Grandparent Visitation Hearings
Generally, grandparents are not required to bring expert witnesses to the hearing in order to show there was a significant relationship with their grandchild or that the loss of the relationship might harm the child. The court is required to review these issues from the perspective of a “reasonable person” so expert testimony is not necessarily required, but in certain circumstances, may be persuasive depending on the unique issues presented.
At the hearing, if the court finds that it is in the child’s best interests to have visits with the grandparents, then the judge can order reasonable visitation. The award of grandparent visitation is enforceable as the court’s order. Should a parent violate the terms of the order, the grandparent may seek to enforce the order and ask the court to hold the parent in contempt of court. Additionally, the injured grandparent may request that the non-compliant parent be ordered to pay the grandparent’s attorney fees in having to bring the contempt action.
Grandparents’ Rights to Visit Grandchildren Placed in Foster Care
Grandparents’ rights are more limited when the child was removed from the parents’ custody by the State of Tennessee and placed in foster care or with another child care agency. These are cases in which the home environment was a danger to the child and, thus, removing the child from the parents was necessary to protect the child.
In foster care cases, grandparents may petition the court for reasonable visitation rights, but only when three conditions are met. First, visitation must be in the best interests of the child. Second, the grandparents must “adequately protect the child from further abuse or intimidation by the perpetrator or any other family member.” Third, the grandparents themselves must not have committed a criminal offense against the grandchild or, for that matter, against their own children (such as rape, sexual battery, or other violent crime). Tennessee’s controlling statute on grandparent visitation of a child placed in foster care is T.C.A. § 36-6-302.
Tennessee Grandparent Visitation Rights Law in Adoption Cases
The laws discussed previously apply in all cases, even when a relative or step-parent adopted the child. Should the child be adopted by someone other than a relative or step-parent, then there is no right to visitation. In fact, as harsh as this may seem, any grandparent visitation rights that previously existed will automatically end. In that instance, the grandparent’s relationship with the minor child must wait until that grandchild emancipates. As an adult, the grandchild is capable of deciding for himself or herself whether to resume a relationship with the grandparent and to what degree.
Modification of Grandparent Visitation Orders
There is one more important case we need to discuss. In 2013, the Tennessee Supreme Court held that parents and grandparents, equally, must satisfy the same standards in petitioning for modification or termination of existing grandparent visitation orders. The case was Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013).
After Lovlace, grandparents are under no greater (or lesser) burden than are parents when petitioning the court to modify or terminate a grandparent visitation order. Whether the parent files the request for modified orders or the grandparent does, the standard of proof applied is the same.
In the Supreme Court’s Lovlace opinion:
“[T]he burden of proof is upon the grandparent or parent seeking modification or termination to demonstrate by a preponderance of the evidence both that a material change in circumstances has occurred and that the change in circumstances makes the requested modification or termination of grandparent visitation in the child’s best interests.”
Tennessee’s grandparent visitation law is not perfect. And, most assuredly, there will be changes to the law in the years ahead as the needs of modern Tennessee families continue to change. Many grandparents will find the legal requirements for visitation overly burdensome and, some might argue, unfair and unjust. Parents, for whatever reason, may abuse their authority over their children and deny a natural, normal relationship between grandparents and grandchildren.
Tennessee law and the courts charged with applying the law to individual cases recognize the potential for misuse of grandparent visitation law. Take heart. The substantive law on the books and the legal proceedings required by the court, when combined, help weed out cases that are harmful for children in order to accomplish what is truly in their best interests.
References, Resources and More:
- Grandparent Visitation Rights in Tennessee
- Grandparents’ Visitation Rights category on our Tennessee Family Law Blog
- Supreme Court Ruling Puts Parents, Grandparents on Equal Footing When Modifying Grandparent Visitation
- Tennessee Child Custody Laws in Divorce – Answers to FAQs
- Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family