Facts: Child was born to unmarried Mother and Father, who were living with Paternal Grandfather when Child was born.

Mother moved out of Grandfather’s home when Child was around one years old. Father and Child continued to live with Grandfather for another year.

During their separation, Mother and Father shared custody of Child under an informal arrangement that ended when Father was arrested for drug offenses.

Mother received sole custody of Child, and Father was limited to supervised visitation.

Four years later, Grandfather petition for grandparent visitation.

Mother said Child had no contact with Grandfather in nearly five years until she asked him to watch Child for a few hours while she was busy with a college exam. That visit went well, and Grandfather offered to watch Child again if it would help Mother.

The following week, Grandfather watched Child again while Mother took a college exam. Afterward, Grandfather told Mother he wanted her to sign some legal documents. Child also reported that he had seen Father at Grandfather’s house. This concerned Mother because Father’s parenting time was ordered to be supervised.

Grandfather’s version differed from Mother’s because he claimed he continued to see Child after Mother obtained sole custody until Mother terminated his visits about 2 ½ years before Mother asked him to watch Child while she took a college exam.

Grandfather admitted he visited Child in the months before and after he petitioned for grandparent visitation.

The trial court found there was no proof that Grandfather posed a risk of harm to Child and ordered grandparent visitation every other Sunday from 8 AM until 8 PM.

Mother appealed.

On Appeal: In a 2-1 decision, the trial court’s judgment was reversed.

Tennessee Code Annotated § 36-6-306(a) allows a grandparent to request grandparent visitation if it is opposed by the custodial parent or if the grandparent visitation has been severely reduced by the custodial parent.

A severe reduction is defined as “reduction to no contact or token visitation.”

If the grandparent cannot show parental opposition or severe reduction, the inquiry ends there; a trial court may not engage in a substantial harm analysis or award the grandparent any relief.

The Majority found the lack of parental opposition prohibited court-ordered grandparent visitation:

In the case at bar, Grandfather did not allege in his petition Mother (or Father) opposed his visitation with [Child] or that his visitation was severely reduced. . . . At trial, Mother testified that Grandfather did not call, write, or send any emails in an effort to see [Child] or for any other reason. Grandfather did not dispute this; he did not testify that he ever tried to see [Child] and was told “no” by Mother or by Father. Moreover, Grandfather did not allege that his visitation with [Child] had been severely reduced. . . .

Mother testified that she did not oppose Grandfather’s visitation with [Child] but that she did not want to sign the legal papers Grandfather had drawn up. In addition, Mother explained that she did not want Father to be around [Child] unless Father filed a petition with the juvenile court [] asking for visitation and had his visitation supervised, as that court ordered [years earlier]. We have held that a parent’s desire to limit the individuals to whom her child is exposed when visiting with a grandparent cannot be considered opposition to visitation.

In the absence of proof that Mother opposed or severely reduced Grandfather’s visitation, the trial court erred in granting Grandfather’s petition and awarding him relief.

The trial court’s judgment was reversed.

Dissent: Judge McGee dissented, writing:

[T]his Court has made clear that the reduction is not a comparison test, stating 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 . . . .” Token visitation is defined [] as visitation that “constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.” I would submit that this is exactly what the trial court found had taken place. Any visits that Grandfather had [in the intervening years] were, in the trial judge’s words, “very limited in number and duration.” Stated differently, Grandfather’s visits were “severely reduced” to mere “token visitation.”

K.O.’s Comment: I vote with the Majority on this one. There is nothing in the opinion to suggest that Mother ever denied visitation requested by Grandfather. Case closed.

Morisch v. Maenner (Tennessee Court of Appeals, Western Section, March 23, 2021).

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