Divorce and Grandparent Visitation Advice in “The Legal Handbook for Tennessee Seniors”

Knoxville grandparent visitation lawyersThe Tennessee Bar Association just released the 2014 edition of The Legal Handbook for Tennessee Seniors.

In addition to important information about federal benefits programs, estate planning, online security and health care, the Handbook contains some information about family law issues relevant to senior citizens.

On page 174 of the Handbook, readers will find the following in a section called “Divorce Considerations for the Senior Adult”:

When an older person divorces, there are a myriad of special considerations not necessarily applicable to younger couples, as well as other factors unique to the marital relationship. The first step is to obtain a lawyer knowledgeable about divorce considerations for senior adults. When you meet with your lawyer, if you are overwrought or upset, it is also advisable to have a relative or friend accompany you to the lawyer’s office, but to preserve the attorney-client privilege, you alone should meet with a lawyer in private.

You should first discuss the fee arrangement to assure that you will be able to afford that particular lawyer. If you cannot afford the fee, you should contact your local legal aid office. You must be completely honest with your lawyer. You will need to know your monthly living expenses, the family income, all assets and how [they are] titled, whether there are any agreements between you and your spouse, existing medical insurance, whether there are Social Security or other retirement benefits and whether or not they are in pay status, and the names and status of all credit accounts, including utilities.

Starting on page 270 of the Handbook, readers will find the following information on grandparent visitation in a section called “Custody and Visitation Issues Relating to Grandchildren”:

The traditional thought is that grandchildren are one of the greatest joys any grandparent’s life. After all, you have the opportunity to spoil them and send them back home to their parents. Unfortunately, for some grandparents this storybook description does not apply. In some cases, parents are unwilling or unable to care for the children, and grandparents must try to step in for safety reasons. In other situations, grandparents and their own children develop problems in the relationship, and the children try to cut the grandparents out of the grandchildren’s lives.

A. Grandparents Rights with regard to Grandchildren

Just what are your rights as a grandparent in Tennessee? Tennessee does have laws in place which address the issue of grandparent rights, and grandparents may sometimes obtain court-ordered visitation with their grandchildren. (For purposes of the law, a grandparent is a biological grandparent, the spouse of a biological grandparent, or the parent of an adoptive parent.) The primary statutory law, which is what is passed by the Legislature, is found at TCA §§ 36-6-306 and 36-6-307. While there are rights provided by the statutes, it is important to understand that under the United States Constitution parents generally have the right to raise their children without anyone telling them how they should do it. Just because a grandparent or someone else might do a better job raising the children does not mean that they can interfere unless there is an actual danger to the child. There is also no absolute right for grandparents to be able to visit with their grandchildren. In short, the rights of grandparents are generally very limited.

Situations of Abuse or Neglect

We will first consider the issue of situations where your grandchildren may be abused or neglected in the custody of their parents. If you believe that your grandchildren’s parents are actually doing such a poor job parenting than that your grandchildren are not safe in their care, then you can consider filing a dependency and neglect action in the juvenile court in the county where your grandchildren reside seeking to be awarded temporary custody of them. If at all possible, you should retain a lawyer to assist you. In a dependency and neglect of matter, the parents of a child are appointed counsel if they cannot afford an attorney, and an attorney will be appointed to represent the best interest of the children (called a guardian ad litem), but grandparents are not entitled to have a lawyer appointed for them.

Grandparents may also consider contacting the Department of Children’s Services if they believe their grandchildren are in danger in their parents’ care. The toll-free number to use when reporting abuse or neglect which is occurring in Tennessee is at 1-877-237-0004. The Department cannot reveal who contacted them, so your identity will remain confidential. The Department will investigate the allegations made, and if they believe that your grandchildren are being abused or neglected, they will take court action to remove them from the parents’ home. The Department must first try to place the children with relatives, so you should make sure that the Department and the guardian ad litem know that you are willing to serve as a custodian for your grandchildren if they are taken from their parents. You should also attend all hearings and request the opportunity to attend all meetings held by the Department with the parents, if you want to be sure that your voice is heard. (You may not always be permitted to attend the meetings held by the Department but you should still make the request.) Again, if you can afford an attorney to assist you, it is generally best that you hire one.

B. Temporary Custody

Grandparents should also note that if they are granted temporary custody in cases of abuse or neglect, courts must generally work toward the goal of providing services to the parents, which will allow them to regain custody of their children at the earliest possible time. In situations where the parents do regain custody, the grandparents may then wish to seek grandparent visitation if satisfactory arrangements for contact cannot be worked out with the parents.

C. Grandparent’s Rights to Visitation or Custody

On the other hand, you may be in a situation where your grandchildren are not abused or neglected in the care of their parents but your relationship with your grandchildren’s parents has deteriorated to the point that they are trying to cut you out of your grandchildren’s lives. In that case, you might consider filing a petition for grandparent visitation in the circuit or chancery court in the county where your grandchildren reside. In some counties the general sessions court also has jurisdiction over these types of cases, and the clerk of court can tell you whether they do. Additionally, if the parents of your grandchildren were not married to one another, you may also file your petition in the juvenile court for the county where your grandchildren reside. If you can afford an attorney, is far better for you to hire one to assist you as the issue of grandparent visitation is a complex one.

The Handbook goes on to discuss Tennessee law on grandparent visitation in greater detail. You can find a free copy of The Legal Handbook for Tennessee Seniors here. It contains a lot of useful information for senior citizens. Many thanks to all the lawyers who generously volunteered their time to create this useful resource.

Source: The Legal Handbook for Tennessee Seniors (Tennessee Bar Association, February 2014).

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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