Grandmother Denied Second Chance at Visitation w/ Grandchild

Tennessee law case summary on Tennessee grandparent visitation rights in Tennessee divorce and family law from the Tennessee Court of Appeals.

Jeanette Rae Jackson v Bradley Kent Smith – Tennessee Grandparent Visitation Rights

In this case, the grandparent requests visitation. After the death of her daughter, the grandmother petitioned the lower court to request visitation rights with the granddaughter on the state’s code. The trial court denied visitation based on the grandmother’s failure of demonstrating a danger of substantial harm to the child.

Jeanette Jackson, grandmother, appealed the decision of a lower court in regards to her right to visit with her granddaughter. Bradley Smith, father, stated that visitation was not a good thing. In 2009, the child’s mother, Stephanie Smith, the grandmother’s daughter, was killed in a car accident. The father would not allow the grandmother visitation with the child after that point. At the end of April of 2009, the grandmother filed a petition for visitation in the lower court, which was not a part of the appellate record.

At the time when the grandmother filed the petition, the code governing these rights was considered. A hearing was held in September of 2009. The lower court denied the petition for visitation in October of 2009. In November of 2010, the second petition for visitation, which was also denied, was entered into record with the appeals court. It noted that the grandmother failed to carry her burden that loss of the relationship was likely to occasion severe emotional harm or presented the danger to the child.

The General Assembly amended the code following the denial. It stated that if the child’s parent was deceased and the grandparent of that deceased parent was seeking visitation, that there is a presumption that substantial harm will occur in the relationship between the grandparent and the child ceases. After this change, the grandmother filed an appeal requesting visitation.

A hearing was held in November of 2010. In that meeting, the trial court dismissed the grandmother’s second petition finding it was barred under res judicata. This is the case that the grandmother then appealed. On appeal, the grandmother stated that the trial court erred by dismissing the grandmother’s petition.

The appeals court first had to determine if the doctrine of res judicata applies in the case. The grandmother claimed it did not because there had been an intervening change in the law. The doctrine of res judicata stops a second suit between the same two people on the same cause of action with respect to all issues, which were or could have been litigated in the former suit.

The appeals court noted that the laws regarding res judicata are limited in the state in terms of when intervening change occurs in the law. However, it noted that the courts followed that changes in the law after a final judgment do not prevent the application of res judicata. It noted that since the new change in the law simply switches the burden of proof and did not create a new right or change the law otherwise, res judicata can be applied in this case.

The appeals court then needed to consider if the requirements for a finding of res judicata applied in this case. Those requirements include that the underlying judgment was rendered by a court of competent jurisdiction, the same parties were involved and that the same cause of action was involved. A final requirement is that the underlying judgment was final.

The appeals court stated that its job is to provide meaningful review and that it is the appellant that must provide record necessary for review. It ruled that while the trial court took judicial notice of its prior proceedings, the appeals court cannot do so. As a result, it ruled the grandmother failed to meet her burden to provide an adequate record for the case. It therefore affirmed the lower court’s ruling.

No. W2011-00194-COA-R3-CV (Tenn. Ct. App. Sep. 9, 2011).

See original opinion for exact language.  Legal citations omitted.

For more information, see Tennessee Grandparent Visitation Rights Law in Tennessee Divorce Law.

Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, alimony modification, and divorces including business valuation and forensic accounting issues.