NEW LAW in 2019 | Stepparent Visitation Now Tougher to Obtain

Stepparent Visitation Now Tougher to Obtain

When H.B. 674 passed the Assembly and was signed into law, stepparent visitation got a complete makeover. Public Chapter 431 amended T.C.A. § 36-6-303,  replacing the old language in its entirety. Effective July 1, 2019, a stepparent who desires visitation with the other spouse’s child must be prepared to jump through more hoops than ever before. No longer is it sufficient to show how stepparent visitation is in the child’s best interests.

Making the case for stepparent visitation starts with a petition or motion in an already pending divorce or family law case. The court has authority to grant such visitation “[i]n extraordinary cases” – that’s rather restrictive language. If the parent or custodian opposes stepparent visitation, then the court will set the matter for hearing. (The stepparent who was already granted visitation may also petition for relief when the parent or custodian obstructs or interferes with contact.)

The amended statute limits the circumstances wherein stepparent visitation may be ordered to the following:

• The stepparent was married to the child’s parent who has died; or
• The stepparent and parent are in the process of divorcing or are already divorced; or
• The stepparent is married to the child’s parent whose whereabouts are unknown; or
• Another state’s court has ordered stepparent visitation; or
• The stepparent and child maintained a “significant relationship for a substantial period of time” before being severed or severely reduced by the parent or custodian for reasons “other than abuse or presence of danger of substantial mental, emotional, or physical harm” to the stepchild or former stepchild. And loss of visitation “is likely to cause substantial mental, emotional, or physical harm to the child”; or
• The parent’s or custodian’s denial of visitation was unreasonable and such denial “has caused the child severe mental, emotional, or physical harm.”

Understand, the custodian’s or fit parent’s decisions and actions regarding stepparent visitation are legally presumed to not harm the child. The stepparent is the one with the burden of proving severed or severely reduced contact will harm the child. But that’s not the end of it.

Only after the stepparent has carried the burden of proof will the court move on to the next determination. That is, whether visitation is in the stepchild’s best interests. The statute sets forth a 12-factor best interests analysis for this very purpose.

The revised law specifically relieves the stepparent of any requirement to provide expert witness testimony evidencing a significant existing relationship with the child or that the loss or severe reduction in contact will likely cause the child substantial mental, emotional or physical harm. In practice, though, many stepparents will need to go the extra mile and incur the expense of hiring a forensic child custody evaluator as an expert. This could certainly motivate the parent or guardian to do the same, setting off a battle of the experts over the impact stepparent visitation may have on the child.