Permissive Visitation after Adoption Does Not Create Right to Visitation in Rogersville, Tennessee: In re M.L.S.

October 26, 2020 K.O. Herston 0 Comments

Facts: A year after Child was born, her biological parents died.

The Tennessee Department of Children’s Services (DCS) placed Child with Maternal Grandparents.

Paternal Aunt and Uncle were also present at the hearing.

DCS announced that Grandparents and Aunt and Uncle informally agreed that Aunt and Uncle would have visitation with Child every other weekend. After placing Child in the custody of Grandparents, the trial judge “advised all parties to work together to help raise” Child.

A year later, Grandparents adopted Child.

Three years after Child’s adoption, Aunt and Uncle petitioned to “enforce visitation.” They alleged that they continued to regularly visit Child in the three years after Child’s adoption until Grandparents “abruptly ended” their visitation. They alleged that a significant bond existed between them and Child such that ending that relationship would cause substantial emotional harm to Child.

Grandparents moved to dismiss the petition to enforce visitation because Aunt and Uncle lacked standing to seek visitation with their adopted child.

The trial court “partially dismissed” the petition to enforce visitation but ordered depositions to determine whether an enforceable right of visitation was acquired by Aunt and Uncle being allowed visitation after Child was adopted.

Grandparents sought an interlocutory appeal, which was granted.

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

Tennessee law makes no legal distinction between a biological parent and an adoptive parent. An order of adoption creates a legal relationship that’s the same as if the adopted child had been born to the adoptive parents.

When the events in this case occurred, Tennessee Code Annotated § 36-1-121(f) said:

The adoptive parents of a child shall not be required by any order of the adoption court to permit visitation by any other person, nor shall the order of the adoption court place any conditions on the adoption of the child by the adoptive parents. Any provision in any order of the court or in any written agreement or contract between the parent or guardian of the child and the adoptive parents requiring visitation or otherwise placing any conditions on the adoption shall be void and of no effect whatsoever. . . . [T]he permission or agreement to permit visitation or contact shall not, in any manner whatsoever, establish any enforceable rights in the parent or guardian, the siblings[,] or other related persons.

The Court found Aunt and Uncle’s petition should have been dismissed in its entirety:

We respectfully disagree with the trial judge’s conclusion that Aunt and Uncle could potentially acquire an enforceable visitation right by “being allowed to visit after the adoption.” At the time of the adoption decree, throughout the subsequent period of visitation, and at the time of the hearing below, Tennessee Code Annotated § 36-1-121(f) provided that the adoptive parents’ permission or agreement to permit visitation would not in any manner whatsoever establish enforceable rights in the related person permitted to visit.

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Although we recognize that Aunt and Uncle want to have a relationship with the child, we are not aware of any legal basis for them to have possibly acquired enforceable visitation rights based on “acquiescence” in visitation after the adoption.

The Court reversed the trial court’s partial denial and remanded the case for dismissal of the petition to enforce visitation in its entirety.

K.O.’s Comment: In March 2019, Tennessee Code Annotated § 36-1-121(f) was amended to say:

A final order of adoption of a child cannot require the adoptive parent to permit visitation by any other person, nor can the final order of adoption place any conditions on the adoption of the child by the adoptive parent. This statute does not prohibit the entry of an order enforcing or modifying a contract for post-adoption contact pursuant to § 36-1-145.

This amendment would not have changed the outcome. The result is the same under either version of the statute.

In re M.L.S. (Tennessee Court of Appeals, Eastern Section, October 16, 2020).

Permissive Visitation after Adoption Does Not Create Right to Visitation in Rogersville, Tennessee: In re M.L.S. was last modified: October 21st, 2020 by K.O. Herston

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