Facts: Mother and Father are the parents of Child. Mother had another child who was legally adopted by the Paternal Grandparents.
Disagreements and hostilities developed between Mother and Father and the Paternal Grandparents, and Mother and Father decided it was in Child’s best interest not to have further visitation with Paternal Grandparents.
Paternal Grandparents filed a petition for grandparent and sibling visitation.
After a trial, the trial court awarded Paternal Grandparents visitation with Child every third weekend as well as telephone contact every other Sunday.
Mother and Father appealed.
On Appeal: The Court of Appeals reversed the trial court.
Tennessee Code § 36-6-306(b)(1) provides:
In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.
It is only after there has been a finding of a danger of substantial harm to the child that the court proceeds to determine whether grandparent visitation is in the child’s best interests. The burden of proof is on the grandparents to show a danger of substantial harm.
Although the circumstances that constitute substantial harm cannot be precisely defined, 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 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 will occur more likely than not.
To find substantial harm, there must be supporting evidence in the record that is specific to the particular child’s relationship with the particular grandparent.
After reviewing the record, the Court of Appeals concluded:
In the present case, the trial court failed to adhere to the required statutory analysis. There was no finding that there was a danger of substantial harm to [Child]. Rather, the trial court based its decision largely upon the need to maintain the relationship between [Child] and her half-sister, [which is] a consideration not authorized under Tenn. Code Ann. § 36-6-306. Moreover, the record in this case does not contain evidence that [Child] was in danger of substantial harm due to the cessation of the relationship with Grandparents. Mother and Father presented evidence that [Child] is a well-adjusted child who was not suffering serious emotional harm and that Mother and Father had sound reasons for terminating her relationship with Grandmother. To order grandparent visitation without a finding of substantial harm violates Tenn. Code Ann. § 36-6-306 and the fundamental right of parents to raise their children as they see fit.
Accordingly, the trial court’s award of grandparent visitation was reversed.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.