Tennessee Supreme Court Clarifies Criteria for Modification of Grandparent Visitation: Lovlace v. Copley

Knoxville child custody lawyersFacts: In their divorce, Mother was designated the primary residential parent of Child and Father was awarded supervised visitation. Eventually, Mother married Stepfather. 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, 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 Grandparents’ request for more visitation and denied the Mother and Stepfather’s request to terminate grandparent visitation entirely. Grandparents appealed.

In three separate opinions on this issue of first impression in Tennessee, the Court of Appeals reversed the trial court. All three judges agreed that a party seeking modification or termination of court-ordered grandparent visitation must make a threshold showing of a material change in circumstances. A majority, Judges Stafford and Kirby, concluded that a grandparent seeking modification must establish that a material change in circumstances exists that presents a substantial risk of harm to the child if the modification is denied. Judge Highers dissented on that issue and would have held that a grandparent seeking modification need not again make a showing of substantial harm to the child. Judge Highers opined that a grandparent need only show that the requested modification is in the child’s best interest. The majority of the Court of Appeals would have required grandparents seeking modification of visitation to satisfy a higher standard than parents seeking modification or termination of grandparent visitation.

The Tennessee Supreme Court granted permission to appeal to determine the appropriate burdens of proof and standards courts should apply where a grandparent and a parent seek to modify or terminate court-ordered grandparent visitation.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals.

The Court began by noting that the Grandparent Visitation Statute and related case law only addresses initial requests for visitation, not petitions to modify or terminate court-ordered grandparent visitation. In the absence of any controlling authority one way or the other, the Court turned to the most analogous thing it could find: the 4-1 decision in Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).

In Blair, the Court held that a parent’s superior parental rights to the care and custody of their children only attached to an initial custody proceeding, not a subsequent proceeding for modification. Specifically, the Blair Court ruled:

the child’s interest in a stable and secure environment is at least as important, and probably more so, then the parent’s interest in having custody of the child returned…. [I]n the absence of extraordinary circumstances[,] . . . a trial court should apply the standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests.

Despite acknowledging that Blair involved a custody order instead of the presumably lesser-consequential visitation order, the Tennessee Supreme Court found “the analysis, reasoning, and conclusions of the Blair majority [are] persuasive and equally applicable to proceedings to modify or terminate court-ordered grandparent visitation.”

Based on the foregoing, the Tennessee Supreme Court ruled

that parties—parents and grandparents alike—seeking modification or termination of court-ordered grandparent visitation must make two showings. First, a party petitioning for modification or termination must demonstrate by a preponderance of the evidence a material change in circumstances. If this showing is made, the party must next prove, by a preponderance of the evidence, that the requested modification or termination of visitation is in the best interests of the child. To determine whether modification or termination is in the best interests of the child, courts shall consider the factors enumerated in the Grandparent Visitation Statute….

Having once afforded parents the opportunity to rely upon the protection of the presumption of superior rights to the care, custody, and control of their children in the initial grandparent visitation proceeding, no constitutional principle demands that parents again be afforded a presumption of superior rights in a subsequent grandparent visitation modification proceeding—whether the subsequent modification proceeding is initiated by the parents or by the grandparents….

Even when grandparents satisfy the initial requirements necessary to obtain visitation, the visitation schedule must be carefully crafted both to afford grandparents the visitation necessary to avoid substantial harm to the child and to minimize, to the extent possible, interference with the parent-child relationship.

Once grandparents have obtained court-ordered visitation, however, the presumption of superior parental rights does not apply in proceedings to modify or terminate grandparent visitation. Declining to apply the presumption of superior parental rights in a modification proceeding “not only gives deference to a court’s order, but it also promotes the important policy goal of stability for the child.”

Applying these standards to the facts in this case, the Court found that the evidence did not preponderate against the trial court’s findings that neither Grandparents’ requested increase in visitation nor Parents’ requested termination of visitation was in the child’s best interests. Thus, the trial court’s judgment was affirmed.

K.O.’s Comment: (1) The Court cautioned that its “holding should not be viewed as retreating from prior decisions recognizing the fundamental right of parents to the care and custody of their children.” How is it not?

(2) Will this lead to fewer agreed orders for grandparent visitation since, by entering such an order, a parent effectively waives his or her superior parental rights? In other words, does this increase a parent’s incentive to litigate since the parent’s superior parental rights are now at stake?

(3) Grandparents alleged— and the trial court found — that Mother was guilty of 26 instances of contempt for failing to carry out the court-ordered grandparent visitation. Although it found Mother in contempt, the trial court failed to make specific findings of fact. Rather than remanding the case to the trial court for additional findings of fact or conducting a de novo review of the record to determine where the preponderance of the evidence lies, the Court invoked Tennessee Rule of Appellate Procedure 36(a), which authorizes appellate courts to grant “the relief on the law and facts to which the party is entitled or the proceeding otherwise requires.” After acknowledging that this provision is rarely used, the Court invoked it to vacate the trial court’s findings that Mother was in contempt and dismiss the Grandparents’ allegations of contempt on the grounds that doing so “provides closure and finality to the [Grandparents], [Parents], and the minor child — very important considerations in legal proceedings involving children.”

I am not saying it is unwise for both sides to lay down their arms, wipe the slate clean, and focus on moving forward. In fact, I would have strongly encouraged them to do exactly that. But for the Tennessee Supreme Court to make them do so — to effectively deny at least one litigant the opportunity to seek judicial relief on issues they wanted to litigate, regardless of whether you or I personally believe it is wise or unwise for them to do so — is a truly extraordinary use of judicial power that should raise grave concerns for anyone who believes every citizen should have access to the courthouse.

Lovlace v. Copley (Tennessee Supreme Court, September 6, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial 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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