Facts: Father and Mother, the parents of Daughter, divorced. Father received limited parenting time with Child—only 46 days. Three months later, Mother died in an accident.

Father, who had started a new job requiring him to travel to Texas and Mexico for weeks at the time, allowed Child to remain in the care of her maternal grandparents (“Grandparents”) for three weeks.

When Mother’s estate went through probate, Father was named a co-trustee, and Grandparents were named trust protectors with authority to monitor the trust’s monthly expenses.

After the trust was established, Father opposed contact between Grandparents and Child. He ignored or denied numerous requests by Grandparents to have contact with Child. Finally, after five months of no contact, Grandparents petitioned for grandparent visitation.

After finding that Father expressly and actually opposed Grandparents’ visitation, there was a clear danger of substantial harm to Child if grandparent visitation continued to be denied, and that regularly scheduled visitation with Grandparents was in Child’s best interest, the trial court granted the petition for grandparent visitation.

Father appealed.

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

Tennessee law recognizes a parent’s right to the care and custody of their child without undue government interference. However, the government may interfere with these rights to prevent substantial harm to the child.

When addressing grandparent visitation rights in Tennessee, courts must perform a three-pronged analysis:

1. the grandparents seeking visitation must show that one of the six situations in Tennessee Code Annotated § 36-6-306(a) exists;
2. the court must find there is a danger of substantial harm to the child absent the visitation and determine if the child and the grandparent have a significant relationship; and
3. the court must decide whether visitation is in the child’s best interest based on the statutory factors.

Parental opposition. Unless the grandparent proves parental opposition to visitation or a severe reduction in visitation, a trial court may not engage in the substantial-harm analysis. Parental opposition includes situations where visitation is denied totally and where visitation is technically not opposed, but the frequency and conditions imposed by the parent are such that it equates to a denial of visitation. The law requires actual existing opposition, not likely future opposition.

Here, the trial court found that Father denied or ignored requests to communicate with Child via FaceTime, which Father argued was not visitation, and clearly expressed his intent to deny any in-person visitation. Father’s communications occurred over text messages quoted at length in the opinion. They are terrible, and the Court of Appeals characterized them as “a rant.”

The Court found the text messages ample evidence of parental opposition:

[W]e disagree with Father’s argument that he did not oppose grandparent visitation, when he consistently denied or ignored Grandparents’ requests for any contact with [Child] for five months. Furthermore, the fact that Grandparents were only requesting FaceTime calls with [Child] throughout most of this period does not affect our conclusion. Black’s Law Dictionary defines “visitation,” as used in the family law context, as “[a] relative’s … period of access to a child.” Father denied or ignored Grandparents’ requests for any contact or access to [Child] for five months, whether in person or through FaceTime.

While Father testified that it was not his intent to deny [Child’s] relationship with Grandparents, he clearly communicated to them in his own words that the denial of contact with [Child] was going to continue “[i]ndefinitely.” He clearly communicated, “If you don’t hear from me then you aren’t spending time with [Child],” and then denied or ignored their requests to visit or face time with [Child]. He admitted that he ignored their requests from November 2018 until April 2019 and that he could have responded to some of their requests. He explained that he did not make it a priority when he should have and was regretful about his actions keeping [Child] from Grandparents…. Although Father testified he was technically not opposed to visitation, the evidence preponderates in favor of the finding that there was “actual existing opposition” when the petition was filed.

The Court affirmed the trial court’s finding that Father opposed grandparent visitation.

Substantial harm. Tennessee law creates a rebuttable presumption of substantial harm when the child’s parent is deceased and the grandparent seeking visitation is the parent of that deceased parent. This shifts the burden of proof to the opposing parent to rebut the presumption.

Father argued that the presumption was rebutted by substantial proof that Child was doing well. The Court disagreed:

Here, [Child] had already begun to show the negative effects from her separation from Grandparents, and there is a likelihood that substantial harm would come to her if she was unable to keep Mother’s memory alive by maintaining a relationship with them. While Father testified that he talked to [Child] about Mother frequently, Grandparents were undeniably [Child’s] best connection to Mother’s side of the family. Father thought that it was important for [Child] to maintain the relationships with people who had known Mother, but he admitted he did not have the means to facilitate those relationships. Grandparents were willing and able to fill that role. Without court-ordered visitation, we find that the evidence demonstrates there was a danger of substantial harm to [Child].

The Court also affirmed that the schedule ordered by the trial court—three weekends a year, 10 days in the summer, weekly FaceTime contact, and attending Child’s extracurricular activities—was in Child’s best interest. Thus, the Court affirmed the trial court’s judgment in its entirety.

K.O.’s Comment: In a footnote, the opinion notes that Grandparents moved to dismiss Father’s appeal per the “fugitive disentitlement doctrine,” but the motion was denied. I wasn’t sure what that was, so I looked it up. In Searle v. Juvenile Court for Williamson County, 188 S.W.3d 547 (Tenn. 2006), the Tennessee Supreme Court explained:

The fugitive disentitlement doctrine bars an individual from calling upon the resources of the court while at the same time ‘thumbing his nose’ at its orders. Because individuals who have fled or escaped have displayed defiance for the judicial system, appellate courts have been reluctant to hear their appeals. Furthermore, the denial of access to appellate courts by fugitives is not limited to criminal cases but occurs in civil cases also.

There, a parent who “flouted the authority of the court on several occasions by disregarding its orders and refusing to appear” and who “purposely continues to place herself beyond the physical reach” of the court after being sentenced for criminal contempt was a “fugitive” such that the fugitive disentitlement doctrine prohibited consideration of her appeal.

The grandparent-visitation opinion that is the subject of this post doesn’t describe the basis for applying the fugitive disentitlement doctrine to Father. All we know is that the motion to apply it was denied.

Rose v. Malone (Tennessee Court of Appeals, Middle Section, July 25, 2022).

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