Facts: In their divorce, Mother was designated the primary residential parent of Child and Father was awarded supervised visitation. Eventually, Mother married Stepfather. The paternal grandparents petitioned for grandparent visitation, which ultimately led to an agreed order providing for grandparent visitation. Several years later, Father consented to Stepfather’s adoption of Child. The order of adoption specifically stated it did not alter or modify the grandparent visitation rights established in the previous agreed order. Later, the grandparents petitioned to modify the prior agreed order to allow additional visitation with Child. Mother and Stepfather counter-petitioned to terminate the grandparent visitation in its entirety. After a hearing, the trial court modified the prior agreed order only to mandate specific times for the grandparent visitation. The trial court denied the grandparents’ request for more visitation and denied the Mother and Stepfather’s request to terminate grandparent visitation entirely. The grandparents appealed.

On Appeal: The Court of Appeals, in three separate opinions, vacated the trial court’s judgment.

The Court was tasked with determining the appropriate burden of proof for both parents and grandparents when modification of grandparent visitation is at issue.

Article I, Section 8 of the Tennessee Constitution protects the privacy interest of parents in their child-rearing decisions, so long as their decisions do not substantially endanger the welfare of their children. Absent some harm to the child, Tennessee courts have held that the state lacks a sufficiently compelling justification for interfering with this fundamental right. Because the Tennessee Constitution protects a natural parent’s fundamental right to control the care and custody of his or her children, parental rights are superior to the rights of others and continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child. This mandate protects a parent’s superior parental rights to have the care and custody of his or her child by requiring a heightened “substantial harm” finding before the grandparent may be granted visitation against the parent’s wishes. Only upon a finding of substantial harm may the court then consider whether the visitation is in the best interests of the child.

A “substantial harm” is one that connotes a real hazard or danger that is not minor, trivial, or insignificant. It also indicates that the harm must be more than a theoretical possibility. Although it need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not. Furthermore, the petitioner must prove harm to the specific child that is the subject of the suit, not children in general.

The Court held as follows:

[I]n order to protect the parent’s superior parental rights, we conclude that the heightened standard of substantial harm used in the initial visitation determination should apply to any subsequent modification of the visitation, as the statute provides no other standard. . . . Because the Grandparent Visitation Statute specifically addresses grandparent visitation, and because there is nothing in the statute from which we can infer that the Legislature did not intend this statute to apply in subsequent proceedings involving grandparent visitation, we conclude that the statute’s substantial harm standard will apply in modification proceedings, such as the one at bar.

Therefore, based upon the foregoing discussion, we conclude that the trial court utilized an incorrect standard when hearing the modification petition filed by the [grandparents]. . . . [T]he trial court should have addressed the question of whether the material change in circumstances . . . gives rise to a substantial risk of harm to the child. Because the trial court applied the wrong standard (i.e., the best interest standard), we vacate . . . all rulings concerning the modification of the child’s visitation schedule. We remand to the trial court for further proceedings, including application of the substantial harm standard. . . .

[I]n order to gain their requested modification of the existing visitation scheme, [Mother and Stepfather] will be required to show, by a preponderance of the evidence, a material change of circumstance affecting the child’s best interest. . . .

[The grandparents] must show, by a preponderance of the evidence, that there has a been a material change in circumstance that would create a risk of substantial harm to the child if modification is not granted.

Judge Highers wrote separately to dissent from the majority’s holding that the grandparents “must again show substantial harm to the child for failure to grant visitation. [] They have crossed that threshold and they are not required to cross it over and over each time they seek to modify visitation.”

To hold that grandparents who have already crossed the “substantial harm” threshold (whether by consent or otherwise) must cross it again each time they seek to modify their visitation would impose a chilling effect on their effort to maintain a relationship with the minor child.

The court should require a showing of material change of circumstances in order to modify, along with a consideration of the best interest of the child.

Judge Kirby also wrote separately to dissent from the majority’s holding regarding the parents’ burden of proof when seeking to modify an existing grandparent visitation order, noting that “[t]he grandparents are entitled only to an amount of visitation sufficient to avert the danger of substantial harm to the child, and only for so long as such visitation is necessary to avoid the danger of substantial harm.”

In all aspects of the modification or termination proceedings, regardless of which party is the movant, I would find a rebuttable presumption that the parents’ preferences and decisions are in the child’s best interests, and accord special weight to them. Explicitly, if visitation is continued, I would accord special weight to the parents’ preferences in fashioning a visitation schedule. In all modification proceedings, the grandparents would retain the continuing burden of showing that denial of visitation would present a danger of substantial harm to the child, because the grandparents may only receive the amount of court-ordered visitation that is necessary to prevent the danger of substantial harm to the child. . . .

[T]he State, in the form of the trial judge, must resist the urge to become “super-parent” . . . because “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” As fit parents, [Mother and Stepfather’s] values and vision for their family should be respected in all stages of the litigation below.

Will the Tennessee Supreme Court weigh in on this issue? Stay tuned.

UPDATE (6/21/2012): We now have the answer to the question above. The Tennessee Supreme Court granted permission to appeal on June 21, 2012.

Lovlace v. Copley (Tennessee Court of Appeals, Western Section, February 3, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.