Facts: Mother and Adoptive Father are the biological mother and stepfather/adoptive father of Child. Mother and Child’s biological father divorced, after which Adoptive Father adopted Child. Prior to the adoption, Paternal Grandparents babysat Child three or four times a week and kept him two or three days each month on weekends. After the adoption, Mother terminated this visitation with Paternal Grandparents because she claimed it made Child confused and she did not want Child to learn that his biological father voluntarily relinquished his parental rights until Child was old enough to process that information. Mother also testified she wanted to foster Child’s relationship with Adoptive Father and Child’s new grandparents.

After a hearing, the trial court found that the cessation of visitation between Child and Paternal Grandparents was likely to cause substantial harm to Child. Therefore, Paternal Grandparents were awarded visitation one weekend a month and on Christmas Day, with permission to attend all school and sporting events in which Child participated.

Mother and Adopted Father appealed.

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

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.

Because of the great deference that courts give to parental decisions, when the court addresses grandparent visitation rights, it must perform a lengthy and complex three-pronged analysis. First, the grandparent seeking the court’s intervention must show that one of six situations exists pursuant to Tennessee Code Annotated § 36-6-306(a). Second, the court must determine whether there is a danger of substantial harm to the child if the child does not have visitation with the grandparent. This is based on three factors set out in Tennessee Code Annotated § 36-6-306(b)(1). In conjunction with this analysis, the court must also determine if the relationship between the child and grandparent is significant based on three more factors set out in Tennessee Code Annotated § 36-6-306(b)(2). Third, if the court finds that there is danger of substantial harm if the child does not have visitation with the grandparent, it must decide whether the visitation would be in the child’s best interest based on seven factors under Tennessee Code Annotated § 36-6-307.

As relevant to this case, Tennessee Code Annotated § 36-6-306(b)(1) provides that the court may find substantial harm if the child has a “significant existing relationship” with his or her grandparents and (A) the loss of that relationship is “likely to occasion severe emotional harm to the child,” (B) the grandparent functioned as a primary caregiver and that the cessation of that relationship “could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm,” or (C) the loss of the relationship “presents the danger of other direct and substantial harm to the child.” In addition, Tennessee Code Annotated § 36-6-306(a)(5) establishes a rebuttable presumption of irreparable harm if the child has resided in the home of the grandparent for a period of 12 months or more.

The term “substantial harm” does not lend itself to easy definition. The courts have not undertaken to define the circumstances that pose a risk of substantial harm to a child. These circumstances are not amenable to precise definition because of the variability of human conduct. However, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm is more likely than not to occur.

After reviewing the record, the Court reasoned:

Essentially, there are only two instances regarding this child, supported by evidence in the record, that Grandparents use to support their harm argument. First, Grandparents point to the testimony of a witness to a number of exchanges between Grandparents and [Mother and Adoptive Father], prior to the cessation of visitation. This witness testified that on numerous occasions the child cried when Grandparents returned the child to [Mother and Adoptive Father] and indicated that he did not want to leave Grandparents’ care. Next, another witness testified that she saw Mother and the child at a retail store after the cessation of visitation. When the witness asked the child about Grandparents, the child became excited and repeated the name “Nana,” which is how the child refers to [Paternal Grandmother]….

We conclude that this evidence was insufficient to meet Grandparents’ significant burden to show that the child would suffer either substantial harm or severe emotional harm as a result of the loss of the relationship with Grandparents…. [T]here was no evidence in the record that the child at issue, who was only three years old at the time of trial, suffered any ill effects due to the cessation of the grandparent-grandchild relationship…. [A] significant relationship or emotional connection with a petitioning grandparent does not, ipso facto, lead to the conclusion that the child will be harmed by the loss of the relationship. Instead, the evidence shows only that the child became excited at the mention of Grandparents, not that he became inconsolable, or otherwise upset, due to the loss of connection with them. Feelings of excitement do not rise to the level of other emotions that are customarily associated with findings of severe emotional harm, such as “grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, [or] nausea….” [T]here is simply no evidence in the record to support a finding that the child will likely feel inadequate, abandoned, rejected, that he will lose connection with his heritage, or that he will suffer economically, if visitation is not granted…. Without a finding of severe emotional harm, Grandparent’s have failed to prove the threshold requirement of substantial harm. Without a showing of substantial harm, the trial court erred in granting grandparent visitation. The trial court’s ruling granting visitation to Grandparents is, therefore, reversed.

K.O.’s Comment: This case is significant because it is one of only a few cases in Tennessee to consider the issue of whether the petitioning grandparents have met their burden to show that substantial harm, or more specifically, “severe emotional harm,” is likely to occur due to the cessation of the relationship.

McGarity v. Jerrolds (Tennessee Court of Appeals, Western Section, August 27, 2013).

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