TN Grandparents Denied Visitation When They Fail to Show Specific Harm

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

Richard McGarity v. Corbin Jerrolds – Tennessee divorce grandparents visitation

This was a grandparent visitation case between pitting the biological mother and adoptive father of a three-year-old child against the paternal grandparents.  After the mother divorced the child’s biological father, she remarried and her new husband adopted the child.  After they married, they decided that visitation by the ex-husband’s parents was no longer in the child’s best interests, and they no longer allowed it.  The grandparents went to court and filed a petition for visitation.

The parties agreed that the grandparents had a substantial relationship, and they had frequently babysat the child.  But the mother testified that after her re-marriage, the visitation confused the child and that it was emotionally painful for her.

After hearing all of the testimony, the trial court concluded that the cessation of visitation was likely to cause substantial harm and ordered visitation one weekend per month and on Christmas day.  The trial court also granted the grandparents permission to attend school and sporting events.  Dissatisfied with this outcome, the mother and adoptive father appealed to the Tennessee Court of Appeals.

The mother and adoptive father first argued that the trial court should not have allowed into evidence photos and videos of the child with the grandparents.  Since all of the parties had agreed that there was a substantial relationship, she argued that this issue was not in dispute, and this evidence was not relevant.  But the Court of Appeals held that there had not been a proper objection to this evidence at trial, and therefore was unable to consider the argument.

They also argued that it had been improper for the trial court to allow the parties to submit proposed findings, and then adopt those findings by reference.  But the Court of Appeals rejected this argument, since there was nothing to indicate that the trial court hadn’t properly examined those findings before adopting them.

They next argued that the finding of substantial harm violated their constitutional rights as parents to raise their children as they see fit.  For this reason, the court cited earlier cases holding that an “unquestioning judicial assumption” that a grandparent-grandchild relationship is always beneficial would be improper.  There must be an actual showing of harm before a court can interfere.  In other words, the mere existence of a substantial relationship is not enough.  There must be a distinct finding of harm from ending that relationship.  The Court then examined earlier precedents from Tennessee and other states, and looked at the evidence in this case to determine if there was sufficient evidence of substantial harm.  The Court of Appeals held that the grandparents had not proven substantial harm or severe emotional harm.  The only concrete evidence offered was that the child had sometimes cried when leaving the grandparents, and that she once got excited and repeated the name “Nana,” which is how she called the grandmother.  The Court of Appeals held that this evidence was insufficient, especially in light of the fact that the child had not shown any signs of harm after the visitation had ended.

For these reasons, the Court of Appeals reversed the case and remanded it to the trial court.

No. W2013-00250-COA-R3-CV (Tenn. Ct. App. Aug. 27, 2013).

See original opinion for exact language.  Legal citations omitted.

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