No Visitation Rights for Grandparents Since Visitation Never Totally Cut Off

Tennessee child custody case summary on grandparent visitation.

Graham Clark, et al., v. Timothy Curtis Johnson

The mother and father in this case were the parents of four children, both biological and adopted.  The mother had suffered various health problems, but she suffered a sudden turn for the worse in 2015 and died that year.  Before the mother’s death, the maternal grandparents visited the grandchildren often.  For a time, the mother and father lived with the grandparents.

After the mother’s death, the grandmother continued to provide daily care for the children during the work week.  The children also stayed in the grandparents’ home a few nights per week.

In a few months, the father hired a nanny, who had previously babysat the children.  She moved in, and she and the father eventually became engaged and then married.  At this time, the grandparents had less and less contact with the grandchildren.

Eventually, the grandparents’ attorney sent a letter to the father asking for more visitation.  There was an exchange of text messages in which the father stated that he was willing to allow visitation, but did not want to set up a fixed written schedule.

Shortly thereafter, the grandparents filed a petition in Sullivan County, Tennessee, juvenile court.  The case was transferred to the chancery court, and that court treated it as a petition for grandparent visitation.  The case was heard by Judge John S. McLellan, III.

A trial was eventually held, and the trial court granted the petition and set a visitation schedule.  The court held that a denial of visitation posed a danger of emotional harm.  In doing so, the court applied the factors listed in the Tennessee grandparent visitation statute.  The grandparents were granted overnight visitation one weekend per month, as well as time during the summer and holidays.

The father then appealed to the Tennessee Court of Appeals.  He argued that the trial court had applied the wrong standard by finding that the father had severely reduced or opposed the visitation.

After addressing whether the court had jurisdiction over the case, the appeals court turned to the issue of whether the father had caused a severe reduction in the visitation.  The father pointed out that this factor is a prerequisite to relief under the statute.

In his appeal, the father pointed out that he had never directly opposed visitation.  In fact, he pointed out that the grandparents had conceded this point.  The grandparents, however, argued that even without direct opposition, the father’s actions had reduced substantially their amount of visitation.

The court looked at the language of the statute and its legislative history and concluded that it is applicable only in the face of a severe reduction in visitation.  The father pointed out that the grandparents had the burden of proof to show this substantial reduction.  The appeals court pointed out that this factor must be determined on a case by case basis, but it normally requires a complete end to visitation, or a reduction to a mere token amount.

After scrutinizing the evidence, the appeals court held that the lower court had improperly defined “severe reduction.” The appeals court pointed out that even though, in comparison to earlier times, there had been less visitation, it had not been totally eliminated or reduced to a token amount.

The appeals court pointed out that the grandparents visited the children at least forty times during the relevant time period.

Under these circumstances, the appeals court held that the condition for application had not been triggered, because there had not been a substantial reduction in visitation.

The appeals court also noted that the father had a fundamental constitutional right to make parental decisions.  Under these circumstances, it reversed the lower court’s order.   It did note that the parties seemed to have a good relationship, despite the litigation, and encouraged them to support a beneficial relationship, even without court-ordered visitation.

No. E2017-01286-COA-R3-CV (Tenn. Ct. App. May 29, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Grandparent Visitation Rights Law in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.