Tennessee Supreme Court Clarifies Standard for Parental Opposition to Grandparent Visitation: Coleman v. Olson

FactsMother and Father are the married parents of one child.

Shortly after Mother filed for divorce, she became ill, was hospitalized, and died from an inflammatory disease. Shortly before her death, Mother changed the beneficiary of her life insurance policy from Father to her mother, i.e., Grandmother.

Father sued Grandmother for the life insurance proceeds. Grandmother sued Father for grandparent visitation. The trial court ruled for Grandmother on the life insurance claim and awarded grandparent visitation. Father appealed.

The case presented two issues to the Court of Appeals:

  • how to remedy a divorcing party’s violation of the statutory injunction when the divorce action is abated by the party’s death; and
  • grandparent visitation.

When I analyzed the opinion from the Court of Appeals, I found the abatement issue noteworthy while the grandparent visitation issue was not. So, I wrote about the abatement issue.

In the Tennessee Supreme Court’s opinion, I find the grandparent visitation issue noteworthy and the abatement issue far less so. This post will focus on grandparent visitation.

As for the abatement issue, the Supreme Court affirmed the Court of Appeals’ decision that a trial court has the authority to consider the equities between the parties when remedying the violation of the statutory injunction when a divorce action is abated by a party’s death.

While the Supreme Court agreed with the Court of Appeals on the law, it found that the evidentiary record could not support the Court of Appeals’ ruling for Father. The case is now remanded to the trial court for an evidentiary hearing where the parties can present evidence relevant to equitable considerations. For more on that issue, see my post on the Court of Appeals’ opinion.

Now let’s turn to what I think is the more noteworthy issue in this opinion — grandparent visitation.

tennessee grandparent visitationThe trial court granted Grandmother’s petition for grandparent visitation after finding that her grandchild was at risk of substantial harm if their relationship ended based on the death of the Mother and the child’s close relationship with Grandmother. These circumstances created a rebuttable presumption of substantial harm under Tennessee Code Annotated § 36-6-306(b)(4).

Tennessee Code Annotated 36-6-306(a) only requires a hearing when grandparent visitation “is opposed by the custodial parent or parents.”

The trial court explained that it doubted Father’s willingness to allow visitation in the future “except on his terms and other conditions that he would impose” and because the “animosity between the parties would make it difficult, if not impossible, for them to coordinate reasonable visitation” without a court-ordered schedule.

The Court of Appeals reversed the trial court because there was no evidence of parental opposition to grandparent visitation.

On Appeal: The Tennessee Supreme Court affirmed the Court of Appeals.

The issue on appeal is whether the trial court’s finding of the likelihood of future parental opposition satisfies the statutory requirement of parental opposition.

The Tennessee Supreme Court says it does not:

We conclude that the Legislature’s use of the words, “is opposed by,” means actual existing opposition — not likely future opposition. Had the Legislature intended for evidence of anticipated or likely parental opposition to support an award of grandparent visitation, it would have so indicated by using the words “if such grandparent visitation is opposed or likely will be opposed by the custodial parent.” The Legislature chose not to do so; we are not free to alter or amend the statute. Based on the plain meaning of Tennessee Code Annotated § 36-6-306(a), a petitioning grandparent must establish that the custodial parent opposes grandparent visitation. . . .

Unless there is evidence of parental opposition to visitation, a trial court cannot consider whether the child is at substantial risk of harm under Tennessee Code Annotated § 36-6-306(b) or whether visitation would be in the child’s best interest under subsection (c).

[Grandmother] needed to show that [Father] opposed visitation between the occurrence of the qualifying circumstance and the filing of the petition for visitation. [Grandmother’s] petition for grandparent visitation failed to allege the threshold requirement of parental opposition to visitation between the death of [Mother] and the filing of the petition. . . .

The provisions of Tennessee Code Annotated § 36-6-306 for grandparent visitation are only triggered when there is parental opposition to grandparent visitation. [Grandmother] did not prove parental opposition, and the trial court did not find parental opposition. The trial court’s award of grandparent visitation was based on the likelihood of parental opposition and was well-intentioned given the trial court’s assessment of the parties’ contentious relationship. Yet Tennessee Code Annotated § 36-6-306 requires evidence of parental opposition, rather than evidence of the likelihood of future parental opposition, to grandparent visitation.

Because Grandmother failed to allege and prove parental opposition to visitation, she may not have court-ordered grandparent visitation. The Supreme Court affirmed the Court of Appeals’ reversal of the trial court’s award of grandparent visitation.

K.O.’s Comment: In the case of Uselton v. Walton, the parents did not oppose grandparent visitation prior to the grandparents filing their petition but opposed visitation after the petition was filed. A divided Court of Appeals reversed the award of grandparent visitation because there was no parental opposition when the petition was filed. Judge Highers dissented because, in his view, post-petition opposition was sufficient.

I agreed with the majority but wrote of my hope that the issue would attract the attention of the Tennessee Supreme Court. Five years later, it did.

Here, the Tennessee Supreme Court rejected Judge Highers’ interpretation, explaining that “Tennessee Code Annotated § 36-6-306 requires evidence of parental opposition when the petition is filed and requires evidence of existing opposition, not future opposition.” Grandparents must show both parental opposition when the petition is filed and proof of existing opposition.

Coleman v. Olson (Tennessee Supreme Court, June 15, 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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