Facts: Mother and Father are the divorced parents of Child. Father was convicted of stalking mother and has no visitation with Child. Father has been in and out of jail throughout Child’s life.
Mother and Child resided with Paternal Grandparents for 12 months after Child’s birth. Father was incarcerated during much of this time. Even after Mother moved from Paternal Grandparents’ home, Grandmother would babysit Child three days a week. Paternal Grandparents enjoyed frequent visits with Child.
Paternal Grandparents filed a petition for grandparent visitation that alleging they had no overnight visitation with Child for over one year. Grandmother testified she frequently requested visitation with Child, but that Mother always responded that Child had plans.
Mother testified that Paternal Grandparents called infrequently to request visitation, but that when they did request visitation, Mother and Child’s schedule could not accommodate the visitation. In addition, Mother testified that Paternal Grandparents only requested overnight visitation with Child and when Mother would suggest visitation at a park or restaurant, Paternal Grandparents declined.
In their petition for grandparent visitation, Paternal Grandparents requested visitation for one weekend each month plus visitation during summer, spring and fall breaks.
Mother responded that the Paternal Grandparents’ petition was merely a subterfuge to allow Father to obtain visitation with Child. Mother further stated she never opposed visitation solely with Paternal Grandparents.
At trial, Mother testified there have been no adverse effects to Child since Child has been spending less time with Paternal Grandparents.
The trial court found Paternal Grandparents had established that Child had resided with them for 12 months prior to the cessation of the relationship by Mother. As such, the trial court ruled Paternal Grandparents were entitled to a rebuttable presumption that denial of visitation may result in irreparable harm to Child. The trial court concluded no evidence was presented that rebutted the presumption. The trial court further found continued visitation with Paternal Grandparents was in Child’s best interests. The trial court awarded Paternal Grandparents visitation with Child one Friday evening every month and one continuous five day period during the summer.
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 grandparents/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 grandparents 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. Both the federal Constitution and Tennessee’s grandparent visitation statute require the petitioning grandparent to show visitation was opposed or denied in order for the court to consider ordering visitation. A finding that the parent did not allow petitioning grandparents visitation whenever they requested it does not amount to a finding that visitation was opposed.
In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interests, and the court must accord special weight to the parent’s determinations.
After reviewing the record, the Court explained:
A thorough review of the record reveals . . . the trial court made no specific finding that Mother opposed visitation in this case….
The simple fact that there has been some deprivation of visitation is insufficient to support a finding that a custodial parent opposed visitation. Instead, the law is clear that the custodial parent is entitled to place reasonable limitations on a grandparent’s visitation with a child, as a reasonable limitations cannot be considered opposition to visitation. The issue of whether Mother offered [Paternal] Grandparents visitation with reasonable limitations, so as to defeat [Paternal] Grandparents’ claim that Mother opposed visitation, was a source of considerable dispute in the trial on this cause. This issue was left unresolved by the trial court’s order. The question remains, however, as to whether the trial court’s failure to make specific findings regarding this dispute is fatal to appellate review. We conclude that it is….
[T]he question of whether Mother, in fact, offered [Paternal] Grandparents  visitation, whether that offer was reasonable, and whether [Paternal] Grandparents declined that visitation, must be resolved in order to determine whether Mother’s actions can be fairly characterized as opposing visitation, as defined by Tennessee case law.
Accordingly, the trial court was reversed and the case remanded to the trial court for further proceedings.
K.O.’s Comment: The opinion in Uselton v. Walton is particularly instructive on the issue of parental opposition to grandparent visitation. It is a must-read for lawyers litigating grandparent visitation cases in Tennessee.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.