Facts: Mother and Father are the never-married parents of Child.

Five months after Child’s birth, Father died.

Thereafter, Child’s paternal great uncle and great aunt—the Scurlocks—enjoyed regular overnight visitation with Child nearly every weekend.

A little over three years later, Mother stopped allowing visitation between Child and the Scurlocks.

Shortly thereafter, the Scurlocks petitioned for grandparent visitation, acknowledging that they are not the biological grandparents, but arguing that Child knows them as grandparents, they have played the role of grandparents, and Tennessee law does not limit visitation only to biological grandparents.

The trial court found the Scurlocks lacked standing to seek visitation because they do not fall within the statutory definition of grandparents. Their petition was dismissed.

The Scurlocks appealed.

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

Tennessee’s grandparent-visitation statute defines “grandparent” to

include[], but is not limited to:
(1) a biological grandparent;
(2) the spouse of a biological grandparent;
(3) a parent of an adoptive parent; or
(4) a biological or adoptive great-grandparent or the spouse thereof.

The Scurlocks argued that “includes, but is not limited to” should be read to include them because they have acted in the role of grandparents.

The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized in the Tennessee Constitution. The right to privacy protects the right of parents to care for their children without unwarranted state intervention.

Grandparent-visitation statutes vary significantly from state to state. Some states include or exclude step-grandparents or the effect of adoption.

Other states are more expansive, allowing visitation for grandparents and other persons. For example, Oregon’s grandparent-visitation statute allows any person with “an ongoing personal relationship with a child” to petition for visitation.

Tennessee’s grandparent-visitation statute is more restrictive. It states that the term “grandparent” includes, but is not limited to, the four examples noted above. Tennessee courts have interpreted this to provide standing to lineal ancestors.

Black’s Law Dictionary defines a “lineal ascendant” as a “blood relative in the direct line of descent; ancestor. Parents, grandparents, and great-grandparents are lineal ascendants.”

Tennessee’s grandparent-visitation statute expands the definition beyond blood relatives but retains the lineal nature of the relationship.

The Court was not convinced to read the definition broadly:

Grandparent-visitation statutes must be narrowly construed to protect the fundamental parental liberty interest at stake. Our Supreme Court has expressly rejected the examination of the “extent or quality” of a petitioner’s relationship with the child when determining whether he or she qualifies as a “grandparent” under the statute. Thus, the statute does not authorize a court to determine that a petitioner qualifies as a “de facto grandparent” based upon his or her relationship with a child. This court, therefore, affirms the trial court’s determination that the Scurlocks do not qualify as grandparents under Tenn. Code Ann. § 36-6-306.

The Court affirmed the trial court’s dismissal of the Scurlocks’ petition.

K.O.’s Comment: Oregon’s grandparent-visitation statute grants standing to a much broader category of people:

Any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement, or guardianship of that child, or if no such proceedings are pending, may petition the court for the county in which the child resides, for an order providing for relief under . . . this section.

Should Tennessee amend its grandparent-visitation statute in a similar fashion to grant standing to a broader category of people?

In re Claire C. (Tennessee Court of Appeals, Middle Section, February 14, 2020).