Grandparent Visitation Rights

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Do grandparents have rights to see their grandchildren in Tennessee? How to file for visitation rights in Tennessee. Does the state of TN have grandparents rights? Can Grandparents Get Visitation Rights in Tennessee?

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Grandparent Visitation Rights

Grandparent visitation rights are some of the most heart-wrenching matters family lawyers handle. Grandparents want to see their grandchildren. Parents want the best for their children. When those two worlds collide, situations get very heated. Compromise is not always possible. On top of that, every state handles grandparent visitation disputes differently. Watching this video in a state other than Tennessee? Check with an experienced family lawyer in your area.  There are specific differences in each state’s laws.

Wherever you live, be mindful that many judges are parents and grandparents, too. When making their decisions, they bring their own life experiences, perspectives, and values with them.

Let’s get started!

Do grandparents have rights to see their grandchildren in Tennessee?

Without a court order, a grandparent does not have rights to see their grandchildren.  How does a grandparent obtain a court order allowing visitation?  We will answer that question, and some FAQs along the way, by guiding you through a discussion of:

1. Tennessee’s Grandparent Visitation Statute
2. Parental Privacy Rights of Intact Families
3. The Exception: Danger of Substantial Harm to the Child
4. Adoption in Grandparent Visitation
5. Foster Care in Grandparent Visitation
6. Informal Visitation Agreements
7. Petitioning for Grandparent Visitation
8. Visitation in the Best Interest of the Child
9. Grandparent Visitation Orders
10. Lastly, we will summarize four recent Tennessee grandparents’ visitation cases. These are real-life examples!

 

1. Tennessee’s Grandparent Visitation Statute

Courts must balance the privacy rights of parents with grandparents’ visitation rights.  The best place to begin is with Tennessee’s grandparent visitation statute. To get a handle on the substance of grandparent visitation law and the flow of court proceedings, parents and grandparents should have some familiarity with these three statutory sections:

• Tenn. Code Ann. §36-6-306 which addresses the circumstances, proceedings, and scope of a grandparent’s right to petition for visitation of a grandchild.
• Tenn. Code Ann. §36-6-307 which directs how the court should go about determining whether grandparent visitation is in the child’s best interests.
• Tenn. Code Ann. §36-6-302 which applies only when grandparents seek visitation of a grandchild who has been placed in a foster home or foster care facility.

We will talk more about these sections throughout the video.

In keeping with family law generally, the best interests of the child are paramount. With that in mind, the court must also balance the parents’ rights with the grandparents’ rights. This balancing act recognizes the constitutionally protected parental right to privacy.

2. Parental Privacy Rights of Intact Families

What is the parental right to privacy?

It should be of no surprise to anyone that grandparents and parents do not always agree on how a child should be raised, let alone who the child should spend time with.

At this juncture, the parental right of privacy enters the picture. When a family is “intact,” the parents have the legal right to decide the matter of grandparent visitation. (We’ll get to an important exception in a moment.) Here’s the rule.

The child’s family is considered to be intact when:

• The parents are married to each other. That is, the parents are not divorced or legally separated.
• They are parentally fit. Compare this to unfit parents who were neglectful or abusive.
• They have had continuous custody of the child. For example, the parents did not leave the child to live with grandparents for six months.

After answering the question of whether the family is intact, the experienced family lawyer then applies the proper visitation section. Does this case fall within the exception to the intact family rule?

 

3. Exception: Danger of Substantial Harm to the Child

What legal rights do grandparents have in Tennessee?

Grandparents may petition the court to obtain court ordered visitation rights even when the child’s family is intact. However, for their case to advance, the grandparents must carry the burden of proving how denying visitation would inflict substantial harm on the child.  Carrying this burden of proof is pivotal.  Courts must then balance the privacy rights of parents with grandparents’ visitation rights.

For grandparents to succeed in getting the court to consider their petition for visitation of a child in an intact family, the court must make an initial finding of a danger of substantial harm. That finding gives the court authority to interfere with the parents’ right to make decisions regarding their child. This exception exists because the child’s best interests are paramount. If the court finds the existence of substantial harm, then it takes the next step, determining if visitation is in the child’s best interests.

What if the court does not find any danger of substantial harm to the child? The decision of grandparent visitation should be left up to the parents, and the grandparents’ petition should be dismissed.

As you can see, proving the danger of substantial harm exists is essential to the grandparents’ case when the family is intact. Parents do not have the burden of proof. Grandparents do. (Note the Charlie case summarized later.)

            How do grandparents prepare to prove substantial harm? They start gathering evidence, both documentary and testimonial, with their attorney’s assistance. The parties and their witnesses testify under oath. Witnesses could include extended family and neighbors, as well as experts.

The grandparents’ attorney should prepare to prove, by a preponderance of the evidence, that the child will likely suffer substantial harm if their visitation is stopped or severely reduced. The preponderance of the evidence standard simply means their assertion is more likely than not to be true. Although this is a relatively low standard to satisfy, there still must be proof.

Not all intact families embrace both biological parents or, for that matter, involve first marriages. Blended families with step-parent adoptions add another layer to the grandparent visitation inquiry.

 

4. Adoption with Grandparent Visitation

Did the parent remarry? Did the step-parent subsequently adopt the child? This is still an intact family. Just as before, the court must find a substantial danger of harm before it can intervene in the best interests of the child.[i]

What exactly does this mean? Simply that grandparents do not have unlimited visitation rights with adopted children. The grandparent has a right of visitation if the adoptive parent is related to the grandparent or if the step-parent adopted the child. But that’s it.

In other words, no grandparent visitation rights exist if the child was adopted by a non-relative or someone other than the step-parent. As harsh as this may seem, in Tennessee law any previously existing grandparent visitation rights automatically end with the adoption.

A child in foster care is another situation affecting grandparents’ visitation rights.

 

5. Foster Care with Grandparent Visitation

Is the grandchild in foster care?

Sometimes a child is removed from parental custody by the State of Tennessee because of an endangering home environment. This can be really tough for grandparents. When a grandchild is placed in foster care, only limited grandparent visitation is possible.

            To begin building their case for reasonable visitation of a grandchild in foster care, grandparents must satisfy three conditions:

1. Their visitation must be in the child’s best interest.
2. They must “adequately protect the child from further abuse or intimidation by the perpetrator or any other family member.”
3. Lastly, they cannot have committed a criminal offense against the grandchild or against their own children. This includes rape, sexual battery, or other violent crime.

On that third condition, there is statistical evidence of intergenerational cycles of child abuse and neglect.[ii] Once more we look to the best interests of the child. Grandparents petitioning to visit a grandchild in foster care must not be among the abusers, which is only reasonable.

Is grandparent visitation like parenting time?

For some grandparents it may seem like deja vu. But in the legal sense, grandparent visitation is quite unlike parenting time. Court-ordered parenting time is only for biological or adoptive parents. In fact, it does not apply to grandparents at all. (Note the Delta case summarized later.)

Grandparent visitation is unique in the law. It can only be awarded to a non-parent who is related by blood or by adoption to both the child and a parent. That relationship distinguishes grandparent visitation from the kind of access sought by aunts, uncles, cousins, and more distant family members. Grandparents are special people with special rights in Tennessee law.

 

6. Informal Visitation Agreements

Is an informal grandparent visitation agreement enforceable in court?

Access agreements between parents and grandparents are not enforceable because this situation occurs without a court order.    When we talk about informal grandparent visitation agreements, we are describing consensual holiday visits with the grandchild, vacation travel, afterschool child care until parents get home from work, or other like arrangement. Only a court order is considered enforceable.

In actuality, these kinds of informal visitation agreements are commonplace. And many work out well. Everything is fine until it’s not. If the circumstances change or parents and grandparents no longer see eye-to-eye, then these casual arrangements can get very messy and quickly devolve.  Absent a court order to the contrary, parents may deny access to their child for any reason.

Only court-ordered grandparent visitation is enforceable. When the court grants visitation, the grandparents can ask the court to enforce its order if the parents violate it.  More about contempt proceedings later.

Jumping ahead for a moment, the fact that an informal visitation agreement existed may be relevant to the analysis of the child’s best interests. Don’t throw the baby out with the bathwater! For grandparents, that history of regular access to the child can weigh in favor of visitation. For parents, if grandparents persistently refused to comply with their rules of access, then that could weigh against grandparents. A parental rule forbidding alcohol or marijuana use in front of the child is an example.

Why petition for court-ordered grandparent visitation?

Petitioning may be the grandparents only alternative.

Obtaining court-ordered visitation with a specific child means filing a lawsuit against the child’s parents. Needless to say, most people do not relish the idea of suing their adult children. Nor do most fit parents graciously accept having to defend how they choose to raise their children. But when the parent, step-parent, adoptive parent, or custodian severs or severely reduces access to the child, grandparent options are limited.

Did parents and grandparents try mediating their visitation dispute? Many do with good results. But if an agreement is not reached, then filing a petition for court-ordered access is the grandparents’ only remaining path. And it is possible the judge will deny the petition. (Grandparent visitation rights were denied in two of the cases summarized later.)

Knowing the court will balance the rights of both parties, let’s move on to the legal process of petitioning for grandparent visitation.

 

7. Petitioning for Grandparent Visitation

How to file for visitation rights in Tennessee

The grandparent who wants visitation rights granted by the court must file a petition seeking a court order granting those visitation rights.  Courts must balance the privacy rights of parents with grandparents’ visitation rights.  Asking the court to grant visitation takes preparation, a legal strategy, and a fair amount of patience. From the outset, a grandparent’s petition must assert at least one of a list of allegations set forth in Tennessee law.  We will discuss those circumstances now.

Did the parent oppose or severely reduce visitation?

The grandparent visitation petition and request for hearing should only be filed after the custodial parent opposed visitation or severely reduced access. The petition must also allege one of six circumstances exists. Those circumstances fit into three categories.

First, look at the parents’ circumstances –

1. One or both parents are deceased.

When one parent is deceased and the decedent’s parent seeks visitation, there is a legal presumption that denying grandparent visitation will endanger the child. (This happened in the Beta case, summarized later.)

2. The parents were divorced, legally separated, or never married.
3. A parent has been missing for six months or more.

Any of those events could engender problems or instability in any family. That grandparents may be highly motivated to maintain regular visits with their grandchildren is understandable.

Second, look at the grandparents’ circumstances –

4. Another state ordered grandparent visitation.
5. The child lived in the grandparent’s home for 12 months or longer before being removed by a parent. This creates another legal presumption – that denying grandparent visitation in this situation will endanger the child.

In those situations, grandparents played a substantial role in the child’s daily life.

Third, look at whether the parent ended or cut-back visitation –

What if the grandparents were involved in the child’s life, but the parents put an end to the status quo?

6. A parent’s cutting off or severely reducing the grandparent-grandchild relationship will likely cause “substantial emotional harm” to the child when, for 12 months or more, they “maintained a significant existing relationship” up until it was severed or severely reduced.

Only if grandparents satisfy the requirements of § 36-6-306 subsection (a) will the court continue with the substantial harm analysis in subsection (b). We mentioned this earlier in the video. Now let’s see how everything fits together.

Is there a danger of substantial harm to the child?

The danger of emotional harm often exists when any of the following are true:

• 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.

(We’ll define a “significant existing relationship” in a moment.)

• The grandparent functioned as the child’s primary caregiver.

If the grandparent was the child’s primary caregiver, then ending their relationship could interfere with the daily needs of the child being met. This could cause physical and emotional harm. The child might fail to thrive, for example, or fall behind in school.

• The child had a significant existing relationship with the grandparent and ending that association may cause “other direct and substantial harm” to the child.

This brings us to the follow-up question.

Did a significant relationship exist between grandparent and grandchild?

A significant relationship exists when the child lived with the grandparent for six consecutive months. A significant relationship also exists when the grandparent was the child’s full-time caregiver for six months or had frequent visitation for a year.

Many grandparents enjoy significant relationships with their grandchildren. The challenge? Proving it in court. (For an example of the parties’ testimony as evidence, note the Alpha case, summarized later.)

Preparing to File a Petition for Grandparent Visitation

The petitioners must actually be the child’s grandparents or great-grandparents! They must have a biological or adoptive connection to child.[iii] They can be the biological grandparents, the spouses of biological grandparents, or the parents of adoptive parents.

            Experienced attorneys often get asked how important a grandparent’s age or sex will be. The advanced age of a grandparent or great-grandparent is no reason for the court to reject a properly filed petition. The court will take age into consideration, however, if it hinders the grandparent’s ability to properly care for the child during visits.

The grandparent’s sex is not relevant. What is important is the role as caregiver. “Was this grandparent the child’s caregiver?” is important when determining the best interests of the child. More grandmothers are caregivers today than grandfathers. Consequently, grandmothers are more likely to establish a close relationship with their grandchildren. But, by no means is that written in stone!

Does the grandparent have standing to sue for visitation?

By standing, we mean the right to sue for visitation. Grandparents have standing in several circumstances. When the child’s mother or father is deceased. When the child’s parents are divorced, separated, or never married. And when the child’s parent has been missing for at least six months.

We mentioned this earlier, but it’s worth repeating. Grandparents do not have standing when fit parents are married to each other. Nor do grandparents have standing if there was a divorce, followed by remarriage, followed by the step-parent legally adopting the child. Remember, with an intact family the court will not interfere absent a danger of substantial harm to the child.

Where do grandparents file their petition for visitation?

They file in the county where the grandchild resides. Visitation petitions are filed in Tennessee’s circuit court, chancery court, or general sessions court with domestic relations jurisdiction.[iv] Were the parents unmarried when their child was born? That petition gets filed in juvenile court.

Does the state of TN have grandparents rights?

Unless a grandparent seeks and obtains a court order allowing grandparent visitation, the State of Tennessee has no separate provisions for grandparents’ rights which exist outside of filing a court action.  When considering grandparent visitation rights, courts must balance the privacy rights of parents with grandparents’ visitation rights.

What Tennessee courts do have is enforcement authority over foreign visitation orders. By foreign, we mean visitation orders entered by the court of some other state. For example, if an Arkansas family court granted visitation, then those grandparents would have the right to request a visitation hearing in Tennessee.

Many people are familiar with registering foreign child support orders in Tennessee for enforcement here in The Volunteer State. However, no such registration exists for out-of-state grandparent visitation orders. With their foreign visitation order in hand, grandparents can only seek access through §36-6-306(a).[v]

Whatever the grandparents’ rights may be, the child’s best interests remain paramount.

 

8. Visitation in the Best Interest of the Child

Is grandparent visitation in the child’s best interests?

The court’s final determination is premised on protecting the child from danger and doing what is in the child’s best interests. This is where Tenn. Code Ann. § 36-6-307 comes in.

To determine whether grandparent visitation is in the best interests of the child, the court makes specific findings on a number of concerns. Without the legalese, these are the kinds of questions that need answering:

• What was the duration and quality of the relationship between the child and his or her grandparent? What role did the grandparent play in the child’s life?
• What emotional ties exist between the child and the grandparent?
• If mature enough to express an opinion, what is the child’s preference regarding visitation?
• What effect of hostility, if any, between grandparent and parent has manifested before the child? Is the grandparent willing to encourage a close relationship between parent and child? (Except in cases involving abuse.)
• Did the grandparent file the petition in good faith?
• If the parents are divorced or legally separated, what is their parenting time arrangement?
• Is the grandparent the biological or adoptive parent of the child’s deceased or missing parent?
• Did the parent unreasonably deprive the grandparent of opportunities to visit the child? Has visitation been unreasonably denied for more than 90 days?
• Does the grandparent want to maintain a significant existing relationship with the child?
• If grandparent visitation is granted, would it interfere with the parent’s relationship with the child?
• Has any court found the parent to be unfit?

The judge’s findings are based on the evidence presented by the parties at the hearing or trial. Anything from daycare pick-ups to social media posts may be admissible, if relevant to an issue before the court.

Will expert witnesses testify at the grandparent visitation rights hearing?

Possibly. It depends. Talk to an experienced family lawyer about your specific situation.  The court applies a “reasonable person” standard to two questions. Whether a significant relationship existed between grandparent and child and whether the loss of that relationship might harm the child. Expert witness testimony is not necessarily required to answer those two questions. However, it can certainly be persuasive, especially if there are mental health concerns claimed by either the parent or grandparent.

What about the emotional ties a child has with a grandparent? Testimony from a mental health professional or independent child custody evaluator, for either side, could be very influential with the court.

Only when the court finds grandparent visitation is in the child’s best interests can it order reasonable visitation. After making its findings and drawing its conclusions, the court makes a final determination on the petition. Visitation is either granted or denied.

9. Grandparent Visitation Orders

If the petition is granted, then the court enters a visitation order with scheduled access. That order is enforceable. What if a parent refuses access anyway? The grandparent can ask the court to hold the parent in contempt. This could be costly for that parent. If held in contempt, the judge may order the non-compliant parent to pay the grandparent’s attorney fees, too!

What does a grandparent visitation schedule look like?

The judge has significant discretion in creating a visitation schedule. It must be reasonable, but beyond that, there are no official visitation guidelines to follow. The schedule could allow one night a month, every Sunday, or provide for 80 nights a year. Every case is unique.  Be prepared to submit a proposed visitation plan with the desired schedule. Talk to your attorney.

            Can the existing grandparent visitation order be modified?

The court’s grandparent visitation order may be modified, even terminated, if there is a material change in circumstances which impacts the child’s well-being. Any modification must be in the child’s best interests.

Whether it is the parent who seeks modified orders or the grandparent, the standard of proof is the same:

[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.[vi]

What can a party do if the outcome of the case is less than satisfactory?

The court has to balance certain considerations required by law. Of course, not every grandparent or parent will be satisfied with the trial court’s determination. On the one hand, grandparent visitation may be quite limited, require supervision, or be denied altogether. On the other hand, the parent’s control over access to the child may be restricted by the court. Needless to say, the trial court’s final judgment may not be the end of it.

After the grandparent visitation trial, if a party is not satisfied with the judge’s decision, then there is an appeal.

How do Tennessee grandparent visitation appeals proceed?

On appeal, the Court of Appeals reviews the facts and determines if there should be an adjustment, a reversal, or a remand of the case. In Tennessee, these appeals are heard by a panel of three judges.

The appeals court’s decisions are written and published. They are described as “appellate opinions” or “cases.” As these decisions are released to the public, they impact family lawyers’ and judges’ understanding of the process and the possible results should a grandparent visitation case go to trial. The four case examples discussed next are appellate opinions. Because these decisions are from a higher court, they affect all grandparent visitation negotiations.

What to do when you can’t see your grandchildren?         

Most experienced family lawyers will recommend doing everything possible to try and work out a solution with the parent or parents before filing a court action seeking court ordered visitation rights.  Grandparent visitation petitions can be a difficult legal process.  Sometimes grandparents do everything possible, even appealing the trial court’s decision, and visitation is still denied. A grandparent’s right to visitation is not guaranteed in every circumstance. Losing visitation can really hurt, yes. But do not give up hope if this happens to you.

Being denied visitation is not the end of the story. Nothing prevents the grandparent from reconnecting and reestablishing a close relationship with the adult grandchild. Adult grandchildren often choose to resume relationships with their grandparents.

 

10. 

    Can Grandparents Get Visitation Rights in Tennessee?

Yes. By filing a court action, providing evidence of the required circumstances and conditions, Tennessee courts will grant grandparents visitation rights.  When considering the petition, courts must balance the privacy rights of parents with grandparents’ visitation rights.

Let’s look now at four recent appellate opinions on the scope of grandparents’ visitation rights. Each case summary includes the family’s unique facts and circumstances, the trial judge’s rulings, and the appeals courts’ rulings. Although these four examples represent only a fraction of grandparent visitation cases, they are a great starting point for gaining perspective. All of these opinions are public record, available on the Internet, and summarized in the Tennessee Family Law Blog’s grandparents’ rights cases.  Party names and case names have been changed for privacy concerns.

 

CASE 1: Grandparent visitation granted in Alpha GP case (2022).[vii]

Note: This case shows how important the parties’ testimony is in these cases. Both parties may testify on each concern.

These are the basic facts.

After their 2017 divorce, the father filed a dependency and neglect action against the mother based on her substance abuse. The father was awarded full custody of his daughter. The mother was awarded visitation.

In April 2020, the maternal grandparents filed their visitation petition. The COVID-19 Safer at Home Order had just been issued.

The grandparents averred, or declared:

• They had a significant relationship with their granddaughter.
• They needed court-ordered visitation to maintain a relationship with the child.
• Grandparent visitation was in the child’s best interests.
• Severely limiting their relationship would cause “substantial emotional harm” to the child.

The mother’s drug dependency played a significant role in this case. The mother transitioned out of the military. In the dependency and neglect action, her visitation rights were restricted because of illegal drug use and inpatient rehabilitation. The juvenile court ordered bi-monthly visitation while the mother was in rehab. The grandparents were to facilitate this by collecting the child on the mother’s weekends, taking the child to her mother on Friday evenings and Sunday afternoons. Over the balance of the weekend, they enjoyed time with the child.

The child was six years old at the time of trial in April 2021. The trial court granted the grandparents’ request and ordered visitation.

The father appealed. Among other things, he argued there was insufficient evidence to prove he severed the grandparents’ relationship with his child or that severance would cause substantial harm.

The Tennessee Court of Appeals affirmed the trial court. The lower court’s findings were supported by a preponderance of the evidence.

The appeals court applied the three-pronged analysis required by statute:[viii]

1. Do grandparents have standing? Yes.

The parents were divorced, which is one of the six situations in § 36-6-306(a).

2. Does a danger of substantial harm exist? Yes.

A danger of substantial harm to the child exists if visitation ends. This is a key consideration.

The grandparents presented substantial evidence concerning their close relationship with the child. Their presented evidence would lead a reasonable person to believe a significant relationship existed between grandparents and grandchild and that the loss or severe reduction of the relationship would likely cause the child to suffer severe emotional harm.

These grandparents maintained a significant relationship with their grandchild. The child lived with them for more than six consecutive months, some of it with the mother, too. They enjoyed daily and then frequent contact with the child from about January 2018 until March 2020.

3. Is visitation in the child’s best interests? Yes.

Having found a danger of substantial harm exists, the court then decides if visitation would be in the child’s best interests.

This is some of the testimony heard at trial.

MOTHER’S TESTIMONY:

• She supported visitation and a schedule that coincided with her parenting time.
• The Washington divorce was granted in December 2017. In January 2018, the child moved in with the grandparents in Tennessee.
• The child had a strong relationship with grandparents because of their significant contact during the child’s life.
• The child seemed reserved when grandparent visits were off but got her “spunk back” and returned to her outgoing self once regular visits resumed.
• The father would not allow regular visitation with grandparents absent a court order.
• It would be detrimental to the child if grandparents’ visits were stopped or reduced.

FATHER’S TESTIMONY:

• He did not object to grandparent visitation. He opposed court-ordered visitation.
• From January 2018 to April 2018, the child spent more time with her grandparents than with him.
• The grandparents adequately provided for the child.
• After mother’s move to Tennessee in April, he had more equal time with the child, but the grandparents had as much time as he did.
• Because of COVID-19, he did not allow the grandparents to visit the child from March to June 2020. He admitted the child was in daycare during that period.
• He cut-off contact with grandparents in April 2020 because the mother was still living in the apartment until arrested in May 2020.

GRANDMOTHER’S TESTIMONY:

Grandmother’s testimony was focused and comprehensive.

• She was present at the child’s birth and loved her. They had a close relationship.
• She did not want the child to lose touch with her extended family in Decatur.
• The child attended church with them and vacationed with them “every year since her birth.”
• The child enjoyed visiting with them. The child would suffer substantial emotional harm if visits were stopped or reduced.
• The child came to live with them in December 2017 while the mother stayed in another state and “‘transitioned out’ of the military.”
• They were sole caregivers from December 2017 until April 2018.
• Mother moved in with them in April 2018. They continued to participate in daily caregiving but for father’s parenting time (alternating weekends then alternating weeks).
• In November 2019, they bought a new home with a separate apartment where the mother and child would live. They still saw the child daily but for father’s parenting time.
• The child often spent the night with them while the mother had evening classes.
• The mother had a history of substance abuse.
• She found illicit drugs in the apartment in March. The mother confessed to using meth. They reported the drug use to the father’s mother. The father then filed another dependency and neglect action in juvenile court and was awarded custody in March 2020.
• While the mother was in rehab, beginning in July 2020 they transported the child to see her as ordered by the juvenile court. They spent time with the child one weekend per month plus additional days during the year. The father placed additional restrictions on the court’s order, which they complied with.
• After obtaining custody, the father was “unresponsive or had denied” their requests to speak with or visit the child.
• She had an April 15, 2020, text from the father telling them to cease contacting him. That’s when they filed the petition.
• They were allowed one call to the child on her birthday in April 2020 and one brief in-person supervised visit in June 2020 (supervised by father). But no other contact.
• During their June 2020 visit, the child was “much more reserved.” She returned to “her normal, outgoing personality” once their visits because more regular. The child counted “sleeps” until their next visit.
• She encouraged the child to have a good relationship with both parents.
• She did not want to take parenting time away from the father. So, they proposed a visitation schedule that coincided with mother’s co-parenting time.
• The father would not allow them regular access absent a court-ordered visitation schedule.
• Initially, she did not ask to see the child because of the Safer at Home order. Then father requested no contact. If the mother relapsed, she worried visitation would be disallowed without a court order.

GRANDFATHER’S TESTIMONY:

The grandfather confirmed his wife’s testimony and added to it.

• Before father obtained custody, he took the child to church, to the doctor, or “wherever she needed to go.”
• In June 2020, after months of not seeing the child, she was “quiet and reserved.” After their visits became more consistent, her personality became “normal” and she “seemed happier.”

PARAMOUR’S TESTIMONY:

• She had been living with the father and seen the child regularly since 2018.
• The father was a good parent.
• The child performed well in school but “at times received negative behavior reports” after spending a weekend with grandparents.
• Despite father’s request that grandparents refrain from feeding the child excess sugar and smoking around her, the child came back “sugared up” and smelling of cigarettes.

Not at all persuaded by the father’s assertion he had not opposed visitation, the appeals court identified constructive denial of visitation:

Despite his protestations to the contrary, the exhibits presented at trial demonstrate that Father sent a text message to Grandparents in April 2020 asking them to cease having contact with him. This predated the filing of Grandparents’ petition for visitation. In doing so, Father denied visitation to Grandparents by refusing to allow them further contact such that they could not request visits. In addition, although Father points to the single visit in June 2020 as evidence of his lack of opposition to visitation, we note that Father placed significant restrictions on that visit by limiting Grandparents’ time with the Child to one hour and requiring that the visit be supervised by him. This amounts to a constructive denial of visitation.

The Court of Appeals affirmed the trial court’s grant of grandparent visitation. Although the grandparents were not awarded their attorney’s fees, the costs on appeal were taxed to the father.

 

CASE 2: Grandparent visitation granted in Beta (2022).[ix]

Note: Everything you text or post online could be used against you in a family law case.

The child in this grandparent visitation case was born in 2012. When parents divorced in 2017, the mother was named primary residential parent with 319 days parenting time a year. She was killed in an accident three months later.

The father’s work required him to travel extensively. While he made arrangements to take custody of his daughter, the child remained with the maternal grandparents for three weeks.

In June 2018, a trust for the child was established when the mother’s estate was probated. The father was named co-trustee with the maternal grandparents serving as trust protectors. The appeals court noted that “[m]uch of the animosity between the parties in this case stems from these probate court proceedings.”

The father began ignoring or denying grandparents’ requests for access to the child in November 2018. In April 2019 they filed a petition for grandparent visitation. Mediation was attempted but no agreement resulted.

The trial was held in October 2020. The maternal grandparents, father, and paternal grandfather testified. The court granted the petition and ordered visitation. The father appealed to the Tennessee Court of Appeals.

1. Father argued he never opposed visitation.

The grandparent visitation statute is not implicated unless the petitioners establish, first, that visitation was opposed or severely reduced by the custodial parent. Only then does the trial court have a legal basis for engaging in the substantial harm analysis or awarding visitation.

            Was visitation opposed or severely reduced? Yes.

Parental opposition to visitation may be proven by evidence of actual or constructive denial. The appeals court reviewed numerous text messages between the parties – some of father’s seemed toxic – and agreed they constituted parental opposition. In one response to grandmother’s access inquiry, he texted:

Quite frankly, I think you’re horrible people, arrogant, selfish, and entitled. I heard all the lies you tell people and the comments you’ve made about me and my family. I don’t like you, but I have always gone out of my way to make sure you were able to spend time with [the child] despite your behavior. I’ve decided not to do that anymore though because I no longer feel that’s in [the child’s] best interests, so now you’ll actually have something to complain about.

The element of parent’s opposition (“actual existing opposition” here) had been satisfied. “Father denied or ignored grandparents’ requests for contact or access to the child for five months, whether in person or through FaceTime.”

2. Was there a danger of substantial harm to the child? Yes.

The mother’s death created a rebuttable presumption of substantial harm. The father argued there was considerable evidence the child “was doing well and the court stated at trial that the child was doing well.” He argued the evidence was sufficient to overcome the presumption.

The appeals court disagreed. Evidence showed the child was having trouble adjusting to the loss of her mother:

Here, the child had already begun to show the negative effects from her separation from Grandparents, and there is a likelihood that substantial harm would come to her if she was unable to keep Mother’s memory alive by maintaining a relationship with them. While Father testified that he talked to the child about Mother frequently, Grandparents were undeniably the child’s best connection to Mother’s side of the family. Father thought that it was important for the child to maintain the relationships with people who had known Mother, but he admitted he did not have the means to facilitate those relationships. Grandparents were willing and able to fill that role. Without court-ordered visitation, we find that the evidence demonstrates there was a danger of substantial harm to the child.

Having found a danger of substantial harm to the child exists, the next step is the best interests analysis.

3. Would grandparent visitation be in the child’s best interests? Yes.

The appeals court reviewed each of the statute’s 11 considerations. Eight of those factors weighed in favor of ordering visitation. Two factors were inapplicable. And nothing favored a denial of visitation. The evidence thus established that grandparent visitation was in the best interests of the child.

4. Was the court’s visitation schedule reasonable? Yes.

Lastly, the father argued the visitation as scheduled was not reasonable and, among other things, should have provided the minimum access needed by the grandparents to maintain the relationship.

The appeals court held the schedule was reasonable. Grandparent visitation included Mother’s Day weekend, 10 days in July, and the weekend closest to the mother’s birthday. It also included provisions for FaceTime calls and extracurricular activities.

The appeals court also declined to modify the visitation schedule: “[I]is not our role to ‘tweak’ an award of grandparent visitation ‘in hopes of achieving a more reasonable result than the trial court.'”

The Court of Appeals affirmed the trial court’s grant of grandparent visitation.

 

CASE 3: Grandparent visitation denied in Charlie (2022).[x]

Note: Grandparents have the burden of proof.  They must offer evidence of how the child will likely suffer substantial harm or severe emotional harm.

This case involved a child born in 2014 to unmarried parents. The paternal grandparents cared for the child twice a week until August 2018. The parents stopped the visits over an argument about the paternal uncle. He was an 18-year-old then and living with the petitioners.

The uncle announced he was gay and had a paramour whom he met online. The “Grandmother later testified that at one point she asked Parents if the child could stay downstairs in their home while the paternal uncle and his paramour remained upstairs, but Father did not agree to this.”

The parents did not want the child around the paramour. Initially, the child was not allowed in grandparents’ home when the paramour was present. After the uncle moved out, parents still did not want the child in grandparents’ home. On August 20, 2018, the parents texted their decision. The child would no longer be going to grandparents’ home.

Despite their differences, the grandparents did spend time with the child for Christmas of 2018. (The parents were married that December, but the grandparents did not attend the wedding.) The grandparents had the child overnight in January 2019 and in the summer.

In February 2019, the grandparents petitioned for visitation. Mediation was attempted with no resulting agreement. Visitation ended entirely in July 2020 “after Grandparents took the child to their home when Parents asked them not to do so.” The case was tried in September of 2020. Both grandparents and the mother testified at trial. The father did not.

The trial court concluded that the parents had opposed grandparent visitation. It then found a significant relationship existed and that the child would be emotionally harmed if visits were cut-off. In July of 2021, the trial court granted visitation, scheduling visits on weekends, holidays, birthdays, and in the summer. The parents appealed.

1. On the threshold question of whether parents opposed the visitation, the appeals court affirmed the lower court’s finding.

The parents were reasonable in asking for no contact between the child and the uncle’s friend. The appeals court stated:

We emphasize that Parents desire to not allow the child to have contact with the paternal uncle’s friend, who was a stranger to the family, was a reasonable limitation. Further, this restriction, in and of itself, does not constitute opposition to the child visiting with Grandparents.

When combined with the other evidence, however, there was actual opposition in word and deed.

2. On the issue of a danger of substantial harm in depriving the child of visitation, the appeals court held for parents.

The trial court failed to comply with the rule mandating the court explain the factual basis for its decision. The appeals court took on the task.

[W]e deem it appropriate to conduct a review of this issue in spite of the deficiencies in the juvenile court’s order. … By choosing to soldier on, we conduct a de novo review of the record to determine where the preponderance of the evidence lies.

This was so the child would not suffer through the delay of remand.

The child is now eight years old and this litigation has been ongoing since he was four years old. The child will not benefit from years of further litigation between family members.

Siding with parents, the appeals court found insufficient evidence in the record to support the trial court’s conclusion of substantial harm. Unlike the Alpha case, there was no evidence the child’s personality or disposition had changed. In summary:

Grandmother’s own testimony revealed that the child was still happy and healthy and that there was no specific evidence of harm due to the limited interaction he was having with Grandparents. Mother concluded the same in her testimony. Other than the child’s teary episodes when he was dropped off by Grandparents after visits, which was disputed by Mother, there was no evidence that the he “suffered any ill effects” due to his limited interaction with Grandparents. [Citation omitted.] Grandmother testified that the child asked questions and expressed emotions about his time with Grandparents, but there was no evidence of harm that could be categorized as “severe, grave, distressing, or extreme” or “a real hazard or danger.” [Citation omitted.] The evidence in the record before us was insufficient to support a showing of substantial harm or severe emotional harm.

Grandparents had the burden of proving the child was likely to suffer substantial harm or severe emotional harm. They failed to carry that burden.

The Court of Appeals reversed the trial court’s award of grandparent visitation and dismissed the case. The costs of appeal were taxed to the grandparents.

 

CASE 4: Grandparent visitation denied in Delta (2020).[xi]

Note: You cannot sneak grandparent visitation in sideways as “parenting time” in a custody case.

The child in this case was born in July of 2011, a month after the father was sentenced to 17 years in prison for aggravated assault. The father executed a voluntary acknowledgement of paternity (VAP) which the mother also signed. He was visited in prison by the mother and child until June of 2013. In July, the mother petitioned to be named primary custodian which the court granted.

In 2014, the father’s motion for visitation rights filed in Juvenile Court was dismissed for lack of standing. He asked that the order be set aside because of the VAP. In 2018, the trial court granted him limited communication rights with the child. The trial court also granted the child’s paternal grandmother visitation rights to facilitate future prison visits. The mother appealed.

The appeals court held the father had standing to sue for custody and visitation rights. The VAP was sufficient to confer standing with both parents’ signatures.

As to awarding parenting time to the father, the trial court found the mother’s unilateral decision to stop prison visits was not in the child’s best interests. The father had the right to both talk to and write to his child. This portion of the lower court’s order was affirmed.

The Court of Appeals then turned to the trial court’s award of parenting time to the paternal grandmother. This was improper, even if done only to facilitate the prison visits. The appeals court explained the lower court’s error:

[N]othing in the record evinces any indication that Grandmother ever filed a petition seeking visitation rights, nor did she even participate as a party in any capacity in the matter.

Because Grandmother was not a party and never petitioned the trial court to receive visitation rights with Child, it was error for the trial court to award her any such visitation rights. Therefore, we vacate this portion of the trial court’s order.

The Court of Appeals affirmed the order granting father relief in part, reversed in part, and remanded. The appeals court vacated that portion of the order granting grandparent visitation.

How has Tennessee grandparent visitation law developed?

Early in this video, we pointed out how courts must balance the privacy rights of parents with grandparents’ visitation rights. There can be significant tension between these parties as both attempt to assert their rights in the courtroom.

Grandparent visitation rights law is primarily legislative in Tennessee. A string of Tennessee cases and one seminal U.S. Supreme Court decision form the basis for the codified grandparent visitation rights law we know today. Constitutionally protected parental privacy rights were at the core of the decisions in:

• 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);
• And Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).

            Here’s what we know after the U.S. Supreme Court’s decision in Troxel v. Granville.

            With an intact family, parents’ decision-making regarding their children’s upbringing should not be interfered with. There is a legal presumption that fit parents act in their children’s best interest.

The Due Process Clause protects parents’ fundamental liberty interest in rearing their children as they deem appropriate without government interference. Any state statute that allowed the trial court to order grandparent visitation over the objection of a fit parent would be unconstitutional.

Therefore, fit married parents have the right to choose whether to expose their children to certain people or ideas. Parents have the right to limit visitation with their children by grandparents and other third persons. This is not up to the legislature!

Article I, § 8 of the Tennessee Constitution protects this parental privacy interest against state interference. Protection stops, however, when parental child-rearing decisions substantially endanger a child’s welfare. (See Hawk v. Hawk.) The danger of substantial harm to the child is an opening for grandparents to assert visitation rights.

Do grandparents have rights to see grandchildren?

Grandparents have rights to see their grandchildren only in certain circumstances created by state law.  Courts must balance the privacy rights of parents with grandparents’ visitation rights.  Experienced family lawyers understand the challenges. Many grandparents will find the legal requirements for visitation overly burdensome. Some might even argue they are unfair and unjust. For whatever reason, parents may assert their authority over their children and deny a natural, normal relationship between grandparents and grandchildren.

Of course, there is a strong emotional component to these family law cases. None of this is easy. Anything can happen, though. So be ready.

Endnotes:

[i] See Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995).

[ii] Why Do Abused Children Often Grow Up To Be Abusive Parents? https://www.psychologytoday.com/us/blog/the-athletes-way/202105/why-do-abused-children-often-grow-be-abusive-parents

[iii] Tenn. Code Ann. § 36-6-306(e).

[iv] Tenn. Code Ann. § 36-6-306(a).

[v] Moorcroft v. Stuart, No. M2013-02295-COA-R3-CV (Tenn. Ct. App. 2015).

[vi] Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013).

[vii] Cupples v. Holmes, No. W2021-00523-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2022).

[viii] Citing Moses & Uitto, The Current Status of Tennessee’s Grandparent Visitation Law, Tenn. B.J., Jan. 2010.

[ix] Rose v. Malone, No. M2021-00569-COA-R3-CV (Tenn. Ct. App. July 25, 2022).

[x] In re Houston D., No. W2021-00979-COA-R3-CV (Tenn. Ct. App. Aug. 16, 2022).

[xi] Baxter v. Rowan, No. W2018-02209-COA-R3-JV (Tenn. Ct. App. Dec. 15, 2020).