Grandparent Visitation in Tennessee

Grandparents in Tennessee are statutorily entitled to visitation rights with their grandchildren under certain circumstances. Over the past few years, the Court of Appeals has attempted to clarify when these grandparent visitation rights may and may not be granted.

The statute. Tenn. Code Ann. § 36-6-306 identifies certain circumstances in which grandparents are entitled to court-ordered visitation with a minor grandchild. The statute defines a “grandparent” as (1) a biological grandparent, (2) the spouse of a biological grandparent, or (3) a parent of an adoptive parent.

Grandparents may petition for visitation with a grandchild, if the visitation is opposed by the custodial parent(s) and (1) one of the parents is deceased, (2) the parents are divorced, legally separated, or never married, (3) another state court has ordered visitation, (4) one of the parents has been missing for at least six months, (5) the child resided in the home of the grandparent for at least 12 months and was subsequently removed from the home by the parent(s), or (6) the child and the grandparent maintained a significant existing relationship for at least 12 months immediately preceding severance of the relationship, the relationship was severed by the parent(s), and severance of this relationship is likely to cause substantial harm to the child.

In considering a petition for grandparent visitation, the court must first determine the presence of a danger of substantial harm to the child. Such a finding of “substantial harm” may be based upon cessation of the relationship between the child and the grandparent, if the court determines that (1) the child had such a significant existing relationship with the grandparent that the loss of that relationship is likely to cause severe emotional harm to the child, (2) the grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus cause physical or emotional harm, or (3) the child had a significant existing relationship with the grandparent and the loss of that relationship presents the danger of other direct and substantial harm to the child.

Under Tenn. Code Ann. § 36-6-306(b)(2), a grandparent will be deemed to have a significant existing relationship with a grandchild if (1) the child resided with the grandparent for at least six consecutive months, (2) the grandparent was a full-time caretaker of the child for at least six consecutive months, or (3) the grandparent had frequent visitation with the child who is the subject of the suit for not less than one year.

A grandparent is not required to present the testimony or affidavit of an expert witness in order to establish a significant existing relationship with a grandchild or that the loss of that relationship is likely to occasion severe emotional harm to the child. Instead, the court must consider whether the facts of the particular case would lead a reasonable person to believe that there is a significant existing relationship between the grandparent and the grandchild or that the loss of the relationship is likely to cause severe emotional harm to the child.

If the parent is deceased and the grandparent seeking visitation is the parent of the deceased parent, there is a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship between the child and the grandparent. Upon an initial finding of danger of substantial harm to the child, the court must then determine whether grandparent visitation would be in the best interests of the child based upon factors set forth in Tenn. Code Ann. § 36-6-307. Upon such a determination, the court may order reasonable visitation for the grandparent(s).

If a person other than a relative or step-parent adopts a child, any visitation rights awarded to a grandparent will automatically end.

Parent in military service. Tenn. Code Ann. § 36-6-308 addresses the assignment of visitation rights to a legal or biological relative while a parent is out-of-state on active duty military service.

The statute permits a parent, who (1) has been granted court-ordered visitation with a child (or children) and (2) has been called to active duty military service which requires the parent to be out-of-state for at least 90 days, to petition the court for a temporary assignment of the parent’s visitation rights to a legal or biological relative or relatives. The petition must include a proposed visitation schedule with the relative(s) that may not exceed the visitation time granted to the parent at the time of the filing of the petition.

Opposition by parent. A question that has arisen in the context of grandparent visitation is what constitutes “opposition” to grandparent visitation by the parents. In the recent case of Angel v. Nixon (Tenn. Ct. App. Nov. 8, 2010), the court was faced with a petition for visitation filed by the paternal grandmother of a 3-year-old child. The grandmother contended that the child’s mother had prevented her from seeing her grandchild following the death of the child’s father. The grandmother filed suit under Tenn. Code Ann. § 36-6-306(a) seeking visitation with the child. The child’s mother filed a motion to dismiss the grandmother’s petition, arguing that she did not oppose visitation by the grandmother, but opposed the times and places the grandmother requested for visitation.

The trial court made specific findings of fact concerning the mother’s opposition to the grandmother’s visitation. The trial court found that the mother’s claim that she did not oppose visitation was “absolutely untruthful” and awarded the grandmother three hours of visitation with the child every third Sunday at the grandmother’s home.

The Court of Appeals affirmed the trial court, holding that a parent opposes visitation, in the context of a grandparent visitation suit, when “visitation is denied totally and when visitation is technically not opposed, but where the frequency and/or conditions imposed by the parents on the visitation are such that it equates to a denial of visitation.”

The grandmother presented ample proof to show that the three 30-minute visits she was given with the child during the summer of 2009 were so limited and uncomfortable that they amounted to a technical denial of visitation. In the first visit, the grandmother was not allowed to play with the child without supervision by members of the mother’s family. In another visit, the grandmother was not permitted to interact with the child for most of the visit because the child was playing video games. The mother also prohibited the grandmother from giving the child a gift she had brought him. In the third visit, the grandmother brought the child’s 13-year-old cousin to visit, but the mother refused to allow the cousin inside her home and would only allow the grandmother to visit if the cousin waited in the car,which she did.

Visitation granted. The Court of Appeals upheld a trial court’s award to a maternal grandmother of 78 days of visitation per year with her grandchild when the child’s mother died when the child was five years old, and the maternal grandmother served as primary caregiver for the child for a substantial time both before and after the death of the child’s mother. For a significant period of time, the grandmother was the only “mother-like” figure in the child’s life, and the grandmother’s involvement in the child’s life was so significant after the mother’s death that the child occasionally referred to his grandmother as his “mother.” Carr v. McMillan (Tenn.Ct. App. May 14, 2008).

The Court of Appeals also affirmed the trial court’s grant of visitation to paternal grandparents who filed suit seeking visitation with their deceased son’s only child. The grandmother testified that she and her husband had significant visitation with their grandchild from September 2007 to March 2008, but that it had substantially decreased since that time. The grandmother stated that the child’s mother had not allowed the grandparents to have any overnight visitation with the child since March 2008 and that the mother had refused to allow them to contact her or the child on the telephone.

The Court of Appeals found that the mother’s action in substantially limiting the grandparents’ visitation with the child and in refusing to accept phone calls from the grandparents to establish visitation was tantamount to, and equated to, opposing visitation by the grandparents under Tenn. Code Ann. § 36-6-306. Wilson v. Gladden (Tenn. Ct. App. July 22, 2009).

Visitation reversed. The Court of Appeals has reversed awards of visitation to grandparents.

The Court of Appeals upheld a trial court’s denial of visitation to the paternal grandparents of a child. The grandparents were initially awarded visitation with the child in November 2005 when the parents were divorced. The father was awarded temporary custody of the child, and because the father was estranged from his parents, i.e., the paternal grandparents, the grandparents were awarded visitation rights with the child. But in April 2007, after determining that the father and paternal grandparents were no longer estranged, the trial court reversed its 2005 order to deny the grandparents any further court-ordered visitation with the child.

The Court of Appeals agreed with the trial court, holding that since the lower court had found that the basis for the initial award of visitation to the grandparents no longer existed, it properly determined that court-ordered visitation by the grandparents was no longer warranted. Saunders v. Saunders (Tenn. Ct. App. May 14, 2008).

The Court of Appeals held that the trial court erred in failing to dismiss a suit filed by the maternal grandmother against her daughter and son-in-law, seeking visitation with her grandchildren, when the parents did not oppose the grandmother’s visitation with the children. The parents testified that they did not oppose the grandmother’s visitation with the children so long as the grandmother abided by certain reasonable restrictions. Because the parents did not oppose the grandmother’s visitation with the children, Tenn. Code Ann. § 36-6-306 was not implicated. Rogers v. Turner (Tenn.App. Oct. 13, 2008).

In a similar case, the Court of Appeals held that the trial court erred in granting the maternal grandparents’ petition for visitation with their grandson when undisputed testimony at trial by the parents was that they did not oppose visitation by the grandparents. The Court of Appeals held that Tenn. Code Ann. § 36-6-306 cannot be used by grandparents who think they are entitled to more or different visitation with a grandchild in the absence of a finding that the child’s parents actually or effectively “opposed” the visitation. Huls v. Alford (Tenn. Ct. App. Oct. 22, 2008).

Angel v. Nixon (Tennessee Court of Appeals, Nov. 8, 2010).

Carr v. McMillan (Tennessee Court of Appeals, May 14, 2008).

Wilson v. Gladden (Tennessee Court of Appeals, July 22, 2009).

Saunders v. Saunders (Tennessee Court of Appeals, May 14, 2008).

Rogers v. Turner (Tennessee Court of Appeals, Oct. 13, 2008).

Huls v. Alford (Tennessee Court of Appeals, Oct. 22, 2008).

Source: Tennessee Attorney’s Memo

Information provided by K.O. Herston, Tennessee Divorce Lawyer.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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