Facts: Mother and Father were never married. When Child was born, Father was in the military and stationed elsewhere. Mother allowed the paternal grandparents (“Grandparents”) to have liberal visitation with Child. Years later, Mother married and had children with her husband. When Child was five years old, Mother reduced Grandparents’ visitation with Child but did not end it. Mother thought that overnight visits with Grandparents every weekend would cause Child to miss out on too many weekend activities with her nuclear family, and she believed that one overnight visit per month would be reasonable. Mother also did not object to Grandparents having some visitation with Child on holidays and even allowing Child to accompany Grandparents on vacations.
Dissatisfied with the limitations, Grandparents petitioned for court-ordered visitation pursuant to the Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306. After the litigation commenced, Grandparents requested visitation only to have Mother refer them to her lawyer. Grandparents did not request any more visitation and, consequently, they did not receive any.
The trial court granted the petition and ordered a visitation schedule that essentially allowed Grandparents to have Father’s visitation rights when he was away. The court-ordered schedule even provided for visitation for Grandparents in the event Father chose to exercise all of the visitation to which he was entitled.
On Appeal: The Court of Appeals reversed the trial court.
Mother argued the trial court erred in concluding that the Grandparent Visitation Statute applies in this case because she did not oppose visitation prior to the filing of the petition in this matter, and that she denied Grandparents’ request for visitation only one time after the petition was filed, when she referred Grandparents to her lawyer.
In response, Grandparents argue that they had become accustomed to liberal visitation with Child, and that Mother’s restriction of their visitation amounted to opposition to visitation.
The decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal and state constitutions, explicitly prohibit any judicial assumption that grandparent/grandchild relationships always benefit the child, as contrary to the parents’ fundamental right to raise their children as they see fit. To avoid such an assumption, the Tennessee constitution and Tennessee’s grandparent visitation statute require a grandparent seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Both the federal constitution and Tennessee’s grandparent visitation statute require the petitioning grandparent to show that visitation was opposed or denied in order for the court to consider ordering visitation. In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interest, and the court must accord special weight to the parent’s determinations.
A grandparent visitation action is not a contest between equals. Where the dispute is between a fit parent and a non-parent, both parties do not begin on equal footing. The parent is asserting a fundamental constitutional right. The non-parent is not.
A majority of the Court concluded:
[A]fter careful review of the record, we conclude that the position taken by Grandparents in the trial court below, and in this appeal, reflects a basic misunderstanding of the circumstances in which grandparent visitation may be ordered by a court and a fundamental misapplication of Tennessee’s Grandparent Visitation Statute in several important respects. Unfortunately, the trial court adopted the approach advocated by the Grandparents in this case, so we are left with no choice but to reverse….
The Grandparents in this case appear to be operating under the misguided assumption that, because Mother had permitted them to have generous visitation with the child for several years, they are entitled to continue such a level of visitation, and that they are basically entitled to stand in the shoes of their son, who chose to live far from his daughter. Unfortunately, this faulty premise appears to have been embraced by the trial court, which ordered a level of visitation that would be appropriate for a biological parent….
The Grandparents’ argument on this issue is sheer hubris. This Court has previously held that reasonable limitations on grandparent visitation “cannot be considered opposition to visitation.” The visitation Mother described to Grandparents, once a week plus overnight every other weekend, remained generous by any measure and amounted to no more than placing reasonable limits on the visits….
If the custodial parent did not oppose grandparent visitation before the petition for court-ordered grandparent visitation is filed, evidence of the custodial parent’s conduct after the petition is filed cannot establish the threshold element of opposition….
[P]ost-petition conduct by the custodial parent can be utilized only to bolster or contradict a showing that the custodial parent opposed visitation prior to the filing of the petition; it cannot be used as a substitute for evidence that establishes opposition prior to the petition. Thus, we must conclude that the undisputed evidence in the record preponderates against the trial court’s conclusion that the Grandparents had carried their burden of demonstrating that Mother opposed Grandparents’ visitation with [Child]. Because Grandparents did not establish the threshold fact that Mother opposed their visitation before Grandparents filed the petition for court-ordered visitation, we must conclude that the Grandparent Visitation Statute is inapplicable in this case….
Because the Grandparent Visitation Statute was not implicated under the facts of this case, the trial court’s order establishing a visitation schedule for Grandparents must be reversed, and the Grandparents’ petition must be dismissed with prejudice.
Judge Highers dissented, writing:
The majority effectively concludes that because there was not sufficient opposition to visitation prior to the petition for visitation being filed, it is irrelevant that the Mother terminated the relationship between the child and the grandparents after the petition was filed. The majority notes that grandparents “cite no authority” for their position, but it is perhaps even more compelling that the majority cites no authority for its novel and far-reaching ruling on the Grandparent Visitation Statute. There is nothing in the text of the Grandparent Visitation Statute, or in the cases applying it, that commands such an untenable result….
The fact is, the grandparents previously had visitation with the child several times during the week, every week, and at least one night every weekend, and then, suddenly, they had none. In view of all these circumstances, this is a case that should be decided on the merits rather than dismissed….
The majority responded to the dissent as follows:
[W]e are puzzled by the dissent’s assertion that our analysis amounts to a holding that the grandparents should have dismissed their lawsuit and re-filed to assert Mother’s denial of visitation, and derides this as a “mockery of judicial economy.” Our position, however, is not that the Grandparents should have dismissed and re-filed their petition for court-ordered visitation; it is that their petition should never have been filed to begin with.
K.O.’s Comment: This split decision raises an interesting procedural and evidentiary question that I hope will attract the attention of the Tennessee Supreme Court. Still, I think the outcome reached by the majority is the correct one. It appears Grandparents received some bad legal advice when they filed prematurely, thereby putting themselves in an adversarial posture against a parent with superior parental rights. Sometimes it pays to play nice instead of rushing to the courthouse, especially in an unequal contest where you are bringing a knife to a gun fight.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.
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