Tennessee Will Not Enforce Grandparent Visitation Orders from Other States: Moorcroft v. Stuart

February 16, 2015 K.O. Herston 0 Comments

Facts: Mother and Father are the married parents of several children.

Mother and Grandmother, both attorneys, worked together in Grandmother’s Kentucky law firm for several years. Their relationship began to deteriorate. Mother left Grandmother’s law firm. The relationship eventually became so acrimonious that Mother forbade Grandmother from contacting the children.

Knoxville family law and divorce attorneysGrandmother petitioned the Kentucky court for grandparent visitation. Mother moved to dismiss that action on the grounds that she and Father moved with the children to Tennessee one day prior to the filing of Grandmother’s petition. The Kentucky court denied Mother’s motion and ultimately awarded grandparent visitation to Grandmother.

The next day, Mother and Father filed a petition for legal separation in Tennessee. The Tennessee court subsequently granted the legal separation and entered the parents’ agreed temporary parenting plan.

Grandmother moved to intervene in the Tennessee case in order to enforce the Kentucky grandparent visitation order. Grandmother argued that Mother and Father had entered into a “sham separation” in order to undermine her grandparent visitation rights. The Tennessee court allowed Grandmother to intervene.

Grandmother then sought to register the Kentucky grandparent visitation order in the Tennessee case so the Tennessee court could enforce it.

Mother objected on the grounds that the Tennessee version of the Uniform Child Custody Jurisdiction and Enforcement Act (“Tennessee UCCJEA”) did not permit the registration of foreign grandparent visitation orders. Mother also argued it would violate her constitutionally-protected parental rights for a Tennessee court to enforce a foreign grandparent visitation order without a showing of substantial harm to the child.

The Tennessee trial court granted registration of the Kentucky grandparent visitation order and Grandmother’s request that it be enforced.

Mother and Father appealed.

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

Mother and Father argued that the Tennessee UCCJEA does not support the registration and enforcement of foreign grandparent visitation orders for two reasons: (1) the definition of “child custody proceeding” in the Tennessee UCCJEA excludes proceedings seeking enforcement of grandparent visitation orders; and (2) the Tennessee Grandparent Visitation Statute, Tennessee Code § 36-6-306, is the sole remedy for grandparents seeking visitation under a foreign order.

Tennessee Code § 36-6-229(a) (the “registration provision”) provides that a “child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement,” provided certain requirements are met. A “child custody determination” is defined in pertinent part as an “order of a court providing for . . . visitation with respect to a child.” The Tennessee UCCLEA does not specifically reference foreign grandparent visitation orders.

The Tennessee Grandparent Visitation Statute, however, specifically references foreign grandparent visitation orders at Tennessee Code § 36-6-306(a)(4) and -306(b)(1). It reads in pertinent part:

(a) Any of the following circumstances, when presented in a petition for grandparent visitation . . . necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
. . . .
(4) The court of another state has ordered grandparent visitation;
. . . .
(b)(1) 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.

After applying the rules of statutory construction and examining the official commentary to the Tennessee UCCJEA, the Court concluded the Tennessee Legislature did not intend to exclude grandparent visitation proceedings from the Tennessee UCCJEA’s definition of “child custody proceeding.”

The score thus far: Grandmother 1, Mother and Father 0.

That does not end the inquiry, however. The remaining issue is whether a foreign grandparent visitation order may be registered and enforced under the Tennessee UCCJEA provision or if visitation must be sought under the Tennessee Grandparent Visitation Statute.

After examining the law and applying the rules of statutory construction, the Court reasoned:

[The] canons of statutory construction convince us that the Legislature intended to require grandparents seeking visitation rights in Tennessee to utilize the Grandparent Visitation Statute rather than the Tennessee UCCJEA registration provision. First, where a conflict is present, “a more specific statutory provision takes precedence over a more general provision.” The Tennessee UCCJEA registration provision applies to an order providing for “visitation with respect to a child,” a broader and more general reference than the Grandparent Visitation Statute’s specific reference to where “[t]he court of another state has ordered grandparent visitation.” Because the Grandparent Visitation Statute is specifically applicable to instances of grandparent visitation, it overrides the Tennessee UCCJEA registration provision where the two conflict.

Second, we assume the Legislature is aware of its prior enactments; therefore, as a general rule, a more recent enactment will take precedence over a prior one to the extent of any inconsistency between the two…. [T]he Grandparent Visitation Statute . . .  is the more recently adopted statute. This lends further weight to application of the Grandparent Visitation Statute where the two conflict. Furthermore, as the Tennessee UCCJEA has never been held to apply to foreign grandparent visitation orders in Tennessee, a holding that the Grandparent Visitation Statute precludes its application to such orders would not constitute an implied repeal.

Finally, when faced with two equally plausible interpretations, one of which poses constitutional concerns, the canon of constitutional avoidance directs us to adopt the other interpretation….

Article I, Section 8 of the Tennessee Constitution requires that a finding of substantial endangerment be made before a non-parent can overcome the presumption of superior parental rights. Application of the Tennessee UCCJEA registration provision to grandparent visitation presents serious constitutional concerns. Tennessee Code § 36-6-229 does not provide adequate constitutional protection to our citizens—it does not require a court to find a substantial risk of harm to the child prior to registration and enforcement of a foreign grandparent visitation order. It also does not require the foreign court to have made such a finding. The Grandparent Visitation Statute, however, has been revised to explicitly require that a Tennessee court determine whether there is a risk of substantial harm to the child. Only then may the court proceed to consider whether grandparent visitation is in the child’s best interest.

Because registration of a foreign grandparent visitation order that does not comply with our State’s constitutional guarantees would present serious concerns, we conclude that the Tennessee UCCJEA registration provision does not apply to foreign grandparent visitation orders.

Accordingly, the trial court’s order registering and enforcing the Kentucky grandparent visitation order was reversed.

K.O.’s Comment: The Court notes that courts in other states (e.g., Michigan, Georgia, Alabama) have reached the opposite conclusion. The distinguishing feature is the grandparent visitation statutes in those states do not explicitly apply to a situation where the grandparent has a foreign visitation order, like Tennessee’s grandparent visitation statute does. Because those states lack an alternative avenue for recognizing grandparent visitation rights, registration and enforcement of the foreign grandparent visitation order provides the only option in those states for grandparents to seek relief. In Tennessee, however, grandparents with visitation orders from other states can (and now must) proceed under Tennessee’s Grandparent Visitation Statute.

Moorcroft v. Stuart (Tennessee Court of Appeals, Middle Section, January 30, 2015).

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

Tennessee Will Not Enforce Grandparent Visitation Orders from Other States: Moorcroft v. Stuart was last modified: February 16th, 2015 by K.O. Herston

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