Grandparent Visitation and Legal Guardian: Green v. Evans

Facts: Child was declared dependent and neglected. Legal custody was awarded to the paternal great-grandmother (Ms. Evans). After Child’s mother died, the maternal grandmother (Ms. Green) petitioned for grandparent visitation. The trial court awarded grandparent visitation to Ms. Green. Ms. Evans appealed.

On Appeal: The Court of Appeals reversed the trial court.

Both the U.S. and Tennessee constitutions recognize parents’ fundamental constitutional right to make decisions on care, custody and control of their children, thereby prohibiting any judicial assumption that grandparent/grandchild relationships always benefit the child. To avoid such an assumption, the Tennessee constitution and Tennessee’s grandparent visitation statute, Tennessee Code Annotated § 36-6-306, 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.

Ms. Evans argued that the grandparent visitation statute is not applicable because the child is in the custody of his legal guardian, not his “parent.” The Court stated:

While the grandparent visitation statute does not define “parent,” other Tennessee statutes that define the term include only a biological, legal or adoptive parent. Moreover, numerous other Tennessee statutes refer explicitly to a child’s parent or legal guardian. In contrast, Section 36-6-306(a) refers only to opposition to visitation by a “parent” or severance of the grandparent-grandchild relationship by a “parent.”

Ms. Green cites no case holding that the term “parent” in Section 36-6-306 includes a legal guardian, and we have found none. If the legislature had intended Section 36-6-306 to apply to situations in which a grandchild is in the custody of a legal guardian, it would have said so expressly in the statute. It did not.

We conclude that the term “parent,” as used in Section 36-6-306, does not include a legal guardian such as Ms. Evans. Therefore, we find that the grandparent visitation statute is inapplicable in this case.

Although this holding is sufficient to reverse the trial court and conclude the appeal, the Court took the unusual step of commenting on other issues raised on appeal because of the Court’s “serious concerns about the trial court’s application of the grandparent visitation statute to the facts and evidence presented at trial.” The Court commented that the trial court’s finding  appears to have been based on exactly the type of “sentimental” and “unquestioning judicial assumption” of the benefit to the child of the grandparent/grandchild relationship that the Tennessee Supreme Court and the United States Supreme Court expressly disavowed. The Court added: “The trial court’s best interest ruling is contrary to virtually all of the evidence in the record.” Yikes.

Green v. Evans (Tennessee Court of Appeals, Middle Section, March 30, 2012).

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

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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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