Grandparent Visitation Reversed in Kingsport, Tennessee: Clark v. Johnson

FactsFather and Mother were the married parents of four children. The children’s maternal Grandparents lived about an hour’s drive away. Despite this distance, Grandparents spent a great deal of time with the children, visiting with them several days each week. The children also visited often at Grandparents’ home.

Nine years after their marriage, a sudden and unexpected decline in Mother’s health caused her death.

Following Mother’s death, Father hired as a nanny a woman who had served as a babysitter for the children. The woman moved in with Father and the children in the spring of 2016, and she and Father became engaged in July 2016.

The nature of the visitation Father allowed Grandparents to have gradually changed from individual time and overnight stays to mere invitations to attend the children’s events and activities.

Text messages reveal that Grandparents visited with one or more of the children on more than 40 occasions in the 11 months preceding this litigation. Father had not refused a request to visit without providing a reason such as a prior engagement.

Tennessee grandparent visitationGrandparents hired a lawyer, and the lawyer sent a letter to Father threatening litigation. Any guesses on how well that was received?

In later communications between Grandparents and Father, it was revealed that Grandparents wanted to have a visitation schedule. Father refused, saying, “If you would like to see the kids, then let me know and we’ll work out a time you can come visit them, but I’m not going to have a schedule with you.”

Grandparents petitioned for grandparent visitation.

After finding that Father had severely reduced Grandparents’ visitation with the children, Grandparents were awarded overnight visitation on the third weekend of each month and two additional overnight visitations each month on a date to be agreed upon by the parties. Grandparents also received seven days of summer vacation and a portion of Thanksgiving and Christmas.

Father appealed.

On AppealThe Court of Appeals reversed the trial court.

It is well-established in Tennessee that parents enjoy a fundamental constitutional right to raise their children as they see fit absent a judicial finding of a risk of substantial harm to the children.

Tennessee courts may order grandparent visitation upon a showing that visitation, and as a result the grandparent-grandchild relationship, was severely reduced by the parent. “Severe reduction” means visitation reduced to no contact or nothing more than perfunctory visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.

The Court determined there was no severe reduction in Grandparents’ visitation:

[W]e determined that the trial court incorrectly interpreted the statutory definition of “severe reduction” to include what the court termed, “insubstantial contact compared to the previous ‘individual’ relationship between the grandparents and grandchildren. . . .” Father [] does not dispute that . . . Grandparents began to be offered less visitation time with the children. However, the statutory definition does not describe a reduction in visitation in comparison to any visitation the grandparents may have enjoyed previously. The statutory definition of a severe reduction is “reduction to no contact or token visitation as defined in § 36-1-102. . . .” [T]he amount and quality of Grandparents’ visitation with the children was never reduced to “token” as that term is defined in Tennessee Code Annotated § 36-1-102.

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In this case, the frequency of Grandparents’ visits with the children during the relevant time period cannot be considered minimal contact.

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Although the trial court found that Grandparents’ visitation and relationship with the children had been severely reduced in comparison to what it had been in the past, the statutory definition does not call for a simple comparison of the visitation and relationship during an earlier time period with the visitation and relationship during the relevant time period. . . .

Considering also Father’s fundamental constitutional right at stake here to make parental decisions, we reverse the trial court’s grant of Grandparents’ visitation petition. We note that throughout the record in this case, the close and loving relationship between Grandparents and the children is evident, as are Father’s positive statements concerning the children’s relationship with Grandparents. We urge the parties to continue lending their support to an encouragement of this beneficial grandparent-grandchild relationship despite the absence of court-ordered visitation.

The trial court’s judgment was reversed.

K.O.’s Comment: This case serves as another reminder that grandparent visitation disputes are not comparable to visitation disputes between parents. A grandparent visitation case is not a contest among equals. For more reading on what constitutes parental opposition to grandparent visitation, see Uselton, Manning, and In re Landon R.W.

Clark v. Johnson (Tennessee Court of Appeals, Eastern Section, May 29, 2018).

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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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