Grandparent Visitation Schedule Reversed as Unreasonable in Murfreesboro, Tennessee: In re Diawn B.

Facts: Child was born to the unmarried Mother and Father. When Child was seven weeks old, Father died in a car accident.

Following Father’s death, Mother stayed with Father’s aunt for a week, at which time Father’s mother — Grandmother — had regular contact with Child. Grandmother’s relationship with Mother quickly became adversarial, and Mother prevented Grandmother from visiting Child.

Grandmother petitioned for grandparent visitation.

grandparent visitation in TennesseeThe trial court found that Mother opposed visitation and that Mother did not overcome the rebuttable presumption of substantial harm to the child under Tennessee Code Annotated § 36-6-306(b)(4) that arose because Father was deceased and Grandmother was the parent of Father.

After finding it in Child’s best interest for Grandmother to have visitation, the trial court awarded Grandmother visitation one weekend every month, holiday and summer visitation, and two telephone calls with Child every week.

Grandmother was also awarded four of the nine rights listed in the “Parental Bill of Rights” at Tennessee Code Annotated § 36-6-101(a)(3)(b):

  • the right to receive notice and relevant information regarding Child’s medical issues and care;
  • the right to receive directly from Child’s school any educational records normally provided to parents;
  • the right to be free from derogatory remarks in the presence of Child; and
  • the right to be given notice of all extracurricular school, athletic, and church activities and the opportunity to participate in or observe them.

Mother appealed.

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

Grandparent-visitation schedule. Parental rights constitute a fundamental liberty interest under both the Tennessee Constitution and the United States Constitution. For the government to intervene in the parent-child relationship, the Tennessee Constitution requires a compelling justification.

Tennessee Code Annotated § 36-6-306(b)(1) requires the court to determine that “cessation or severe reduction of the relationship” between a grandparent and a grandchild will cause the child “substantial harm” before the court can order visitation against the parent’s wishes.

Once harm is established and the court determines that visitation is in the child’s best interest, the court must create a visitation schedule that advances the state’s compelling interest in minimizing harm to the child. Tennessee’s grandparent-visitation statute, Tennessee Code Annotated § 36-6-306, permits the court to create a “reasonable” visitation schedule. Because parental rights are fundamental rights, the visitation schedule must be narrowly tailored to achieve the state’s objective.

A “reasonable” grandparent-visitation schedule is carefully crafted to afford both grandparent visitation necessary to avoid substantial harm to the child and to minimize, to the extent possible, interference with the parent-child relationship. The level of visitation necessary to minimize harm depends on the unique facts of each case.

The Court found the schedule awarded by the trial court to be unreasonable under the circumstances:

Father died when [Child] was seven weeks old, and Grandmother was [Child’s] primary link to Father’s family. Under the circumstances, a presumption of harm arose under Tennessee Code Annotated § 36-6-306(b)(4), which Mother admits she did not rebut. This necessitated a grandparent-visitation schedule to minimize the potential harm. However, also important, is the fact that at the time of trial, [Child] was 16 months old, Mother had always acted as [Child’s] primary caregiver, never Grandmother, and Grandmother had only visited with [Child] twice . . . .

The trial court created a visitation schedule that allowed Grandmother overnight visitation with [Child] the third weekend of every month, every Christmas break, every other Thanksgiving break, and every summer break. Additionally, the court required that Mother facilitate to phone calls per week between grandmother and [Child], then a 16-month-old baby, without any indication that this young child possessed the verbal or cognitive skills necessary to actively participate in or benefit from regular phone contact. This level of visitation is excessive in a case like this one where the child is very young, Grandmother never acted as a caregiver or parent, and has yet to establish a significant relationship with the child. Therefore, we have determined that the visitation schedule is not “reasonable” . . . because it lacks the narrow tailoring required by the Tennessee Constitution.

One of the more significant legal principles to recognize before crafting grandparent visitation is that Grandmother does not stand in Father’s shoes in her action for grandparent visitation. A fit parent and grandparent do not begin on equal footing. One relies on a fundamental constitutional right, and the other does not. . . .

The grandparent-visitation plan at issue in this appeal is so extensive that it impermissibly interferes with Mother’s fundamental constitutional rights because it is not narrowly tailored to achieve the state’s objective. Moreover, it is more extensive than is reasonably necessary to afford grandparent visitation necessary to avoid substantial harm to the child and to minimize, to the extent possible, interference with the parent-child relationship. Therefore, the trial court exceeded its discretion by crafting a grandparent-visitation schedule that is in conflict with Tennessee Code Annotated § 36-6-306 and constitutional restraints.

The trial court’s grandparent-visitation schedule was reversed and the case remanded back to the trial court to create “a narrowly tailored visitation schedule that affords Grandmother reasonable visitation to avoid substantial harm to [Child] while minimizing interference with Mother’s rights.”

Parental Bill of Rights. Tennessee Code Annotated § 36-6-101(a)(3)(A) requires each custody-related order to grant nine specific rights “to each parent” unless the court finds doing so is not in the child’s best interest. Lawyers and judges often refer to this statutory provision as the “Parent’s Bill of Rights.”

The Court held these rights do not apply to grandparents:

Each of the rights listed in § 36-6-101(a)(3)(B)(i)-(ix) pertain to the right of a “parent;” therefore, this statute applies to visitation and custody determinations between parents, not to grandparent visitation. As stated earlier, in an action for grandparent visitation, a parent and grandparent do not appear before the court as equals under the Constitution, and as such, a grandparent is not entitled to the same rights as a parent.

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[The grandparent-visitation statute] does not reference Tennessee Code Annotated § 36-6-101 or any of the rights therein. It merely authorizes a court to create a reasonable visitation schedule after it makes the requisite findings, nothing more.

The trial court’s award to Grandmother of four of the rights listed in the Parent’s Bill of Rights was also reversed.

In re Diawn B. (Tennessee Court of Appeals, Middle Section, July 23, 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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