Grandparents Denied the Grandparent Visitation They Want in Lexington, TN: In re Dayton R.

Facts: After the children were adjudicated dependent and neglected, the maternal great-grandparents were awarded temporary custody. The children lived with the great-grandparents for the next six years.

Once custody was restored to the biological parents, the great-grandparents petitioned for grandparent visitation. The biological parents opposed visitation.

grandparent visitationThis is the second appeal in this case. In the first appeal, the trial court ruled the great-grandparents lacked standing under Tennessee’s grandparent visitation statute. The Court of Appeals reversed and remanded the case back to the trial court for a decision on the merits.

The great-grandparents requested visitation every other weekend, two weeks in the summer, and birthdays and holidays.

After hearing, the trial court awarded the great-grandparents visitation for eight hours one day a month plus visitation on December 26 and four hours on each child’s birthday.

The great-grandparents appealed.

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

The great-grandparents argued the trial court erred by not awarding them enough visitation.

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 grandparent/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 grandparent 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 that visitation was opposed or denied in order for the court to consider ordering visitation.

In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interest, and the court must accord special weight to the parent’s determinations.

Based upon the language of the grandparent visitation statute, i.e., Tennessee Code Annotated § 36-6-306, an award of grandparent visitation must be based upon three required elements: (1) the presence of one of the situations enumerated in Tennessee Code Annotated § 36-6-306(a); (2) opposition to grandparent visitation by the custodial parent or parents; and (3) the presence of a danger of substantial harm to the child.

Once the trial court finds the above three elements have been met, the trial court is charged with ordering “reasonable visitation.”

After reviewing the record, the Court reasoned:

Here, we conclude that the trial court’s award of visitation was not an abuse of discretion because it sufficiently recognized the importance of both the parents’ fundamental interests to their children and the children’s busy schedules. While we commend [great-grandparents] for their taking care of their great grandchildren for several years, we cannot conclude that the trial court erred in not ordering more visitation than it did. Although [great-grandparents] suggest that the parents and children would benefit from their help by saving on child care or transportation, the fact remains that both Mother and Father object to such an involved visitation schedule. In his testimony, Father stated that [great-grandparents’] request for bi-monthly visitation would conflict with the children’s activities. Mother also expressed a concern that visitation would conflict with her and Father’s parenting time, already limited by their joint-parenting arrangement. This Court, too, recognizes that the children’s schedules currently revolve around attending school; playing baseball; becoming interested in starting new sports, such as football and basketball; visiting other family members, such as grandparents and cousins; and spending time between the homes of both Mother and Father….

Furthermore, the children, as shown by the testimony, lead active lives. To require them to incessantly remain in flux, against their parents’ wishes, is simply not in their best interest. The children’s active lives, along with their need for stability, stand in contradiction to [great-grandparents’] request for more visitation with the children.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Based on their proposed visitation schedule, it appears the great-grandparents in this case viewed themselves as “equals” as compared to the parents. They were wrong. Grandparent visitation disputes are not comparable to visitation disputes between parents. A grandparent visitation case is not a contest between equals. I wonder if the great-grandparents here might have received more visitation had they proposed something more reasonable.

In re Dayton R. (Tennessee Court of Appeals, Western Section, April 7, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce 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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