Facts: For the first 18 months of Child’s life, she and Mother lived with Maternal Grandmother and her husband (“Grandparents”).

Mother and Child lived with Father in Alaska for a few years but visited Grandparents in Tennessee for extended periods.

Mother and Child returned to Tennessee and lived with Grandparents for the next two years.

Mother and Child then moved in with Boyfriend, and shortly after that, all three moved into a camper on Grandparents’ property.

On Mother’s Day, a family dispute arose resulting in a physical altercation between Boyfriend and Mother’s stepsister, both of whom were arrested for assault.

Grandparents immediately banned Boyfriend from the property. Mother and Child moved out of the camper and have lived with Boyfriend in a rental home 15 miles away from Grandparents’ house since then.

A week after the Mother’s Day incident, Mother allowed Grandparents to keep Child overnight. After an argument, Mother informed Grandmother that her future visits with Child must be supervised, a condition Grandmother refused.

Sometime later, Grandparents spent time with Child at a baseball field.

Six weeks after the Mother’s Day incident, Grandparents petitioned for visitation.

The trial court awarded grandparent visitation to Grandparents.

Mother appealed.

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

Mother, acting pro se on appeal (!), argued that Grandparents did not show she opposed or severely reduced their visitation before filing their petition.

Tennessee Code Annotated § 36-6-306 requires, as a threshold matter, that the petitioning grandparent prove that grandparent visitation “is opposed by the custodial parent … or [] the grandparent visitation has been severely reduced by the custodial parent.”

Unlike divorcing or unmarried parents who may agree that visitation is appropriate but disagree about the details of a visitation schedule, a petitioner relying on Tennessee’s Grandparent Visitation Statute must show that the custodial parent denied or severely reduced grandparent visitation.

To show a parent’s opposition, a petitioner must prove that, before filing the petition, the parent opposed grandparent visitation by specific word or deed. Thus, the Grandparent Visitation Statute cannot be used by grandparents who think they should have more or different visitation absent a finding that the parents actually or effectively opposed the visitation. Reasonable limitations on grandparent visitation cannot be considered opposition to visitation.

To show a severe reduction in visitation, a petitioner must show the visitation has been reduced to either no contact or token visitation. Token visitation is that which, under the circumstances, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to establish merely minimal or insubstantial contact with the child.

The Court found Grandparents did not meet their burden to show parental opposition:

[T]he Grandparent Visitation Statute is not even implicated unless the grandparent can establish that visitation was opposed or severely reduced by the custodial parent before the petition for grandparent visitation was filed.

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[T]he trial court found (1) “the presence of substantial harm to the child based on the cessation of the relationship between [Child] and [Grandparents],” and (2) that grandparent visitation was “in the best interest of [Child]….” The trial court did not [] address or make any findings of fact concerning the threshold issue: whether Mother had effectively opposed or severely reduced grandparent visitation prior to the filing of the petition.

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Having reviewed the record, we find no evidence to support a finding that Mother effectively opposed or severely reduced Grandparents’ visitation with [Child] prior to the filing of the petition. The only evidence of opposition to or reduction in visitation was Mother’s statement to Grandmother that future visits would need to be supervised. However, reasonable limitations on grandparent visitation cannot be considered opposition to visitation. Mother’s fundamental right to control the care and custody of [Child] includes the right to reasonably restrict visitation when appropriate. Mother testified regarding concerns of alleged use of corporal punishment by Grandparents, and the Mother’s Day incident of familial violence. In light of these circumstances, the evidence preponderates against a finding that Mother’s insistence on supervised visitation constitutes opposition to, or severe reduction of, visitation in the context of the statutory scheme.

Because the Court found that Grandparents did not establish that Mother opposed or severely reduced their visitation before they filed their petition, the trial court’s judgment was reversed. The petition for grandparent visitation was dismissed.

In re Trinity P. (Tennessee Court of Appeals, Middle Section, December 8, 2021).

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