Facts: Child lived with his Maternal Grandparents from birth until approximately age six, at which point he lived with Mother (Father is deceased). Less than two months later, Maternal Grandparents petitioned for court-ordered grandparent visitation of 138 days per year (after initially requesting that they be named the primary caregivers).
The proof showed that in the seven weeks between the time Child returned to Mother and the Maternal Grandparents filed their petition, the maternal grandparents had visitation with Child on seven different days, including two overnight visits. The proof also showed Mother allowed visitation even after being served with the petition. Mother testified she did not tell Maternal Grandparents they could not see Child, she did not oppose their having visitation with Child, and she wished for them to continue having a relationship with Child. The Maternal Grandparents testified they wanted a “regular” schedule.
The case was first heard by a Juvenile Court Magistrate who awarded the Maternal Grandparents 80 days of visitation per year.
Mother requested a rehearing before the Juvenile Court Judge, who dismissed the Maternal Grandparents’ petition because they failed to prove Mother opposed their visitation with Child.
The Maternal Grandparents appealed.
On Appeal: The Court of Appeals affirmed the trial court.
Parents have a superior right over all others to direct the upbringing of their children, including decisions regarding with whom the child interacts. The Grandparent Visitation Statute, Tennessee Code Annotated § 36-6-306, identifies circumstances in which grandparents are entitled to court-ordered visitation with a minor grandchild. In order for the Grandparent Visitation Statute to be implicated, visitation by grandparents must be opposed by the custodial parent or parents. The grandparents bear the burden of proving the parent has opposed their visitation.
After reviewing the record, the Court commented:
Although Mother allowed the Grandparents to act as [Child’s] primary caregivers for a number of years, they are not legally recognized as his parents, and the statute does not provide the relief that they seek. The Grandparent Visitation Statute cannot be used by grandparents who think they are entitled to more or different visitation in the absence of a finding that the parents actually or effectively opposed visitation. The evidence does not preponderate against the trial court’s finding that Mother does not oppose visitation as contemplated by Tennessee Code Annotated § 36-6-306(a). Accordingly, Tennessee Code Annotated § 36-6-306 is not implicated, and the court did not err in dismissing this case.
K.O.’s Comment: For a case that discusses parental opposition to grandparent visitation in greater detail, see Uselton v. Walton.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.