Facts: Mother was married to her husband when Child was conceived and born. However, when Child was conceived, Mother and her husband were temporarily separated, and Mother engaged in a romantic relationship with Putative Father. That relationship lasted until Putative Father was arrested and began a prison sentence.

Shirley is Putative Father’s grandmother. She alleges that Putative Father is Child’s biological father, and she is Child’s great-grandmother.

One and a half years after Child’s birth, Shirley and Putative Father petitioned to establish paternity and grandparent visitation. Shirley claimed to sue in her capacity as power of attorney for Putative Father. An unsigned power of attorney was attached to Shirley’s petition.

Mother and Father moved to dismiss the case because Shirley lacked standing to petition to establish Putative Father’s paternity and, without first establishing Putative Father’s paternity, she lacked standing to petition for grandparent visitation.

Putative Father filed an affidavit stating he had a romantic and sexual relationship with Mother when Child was conceived. The affidavit did not ask to establish his paternity, however.

The trial court found that Mother’s marriage to her husband when Child was born created a rebuttable presumption that her husband was the legal father. The trial court also found there was “no contested paternity case” because Shirley lacked standing to bring a paternity action on behalf of Putative Father and Putative Father did not request to establish his paternity. Without Putative Father being established as the legal father, Shirley was not a “biological grandparent” and, therefore, lacked standing to petition for grandparent visitation. Also, the juvenile court lacked jurisdiction to hear grandparent visitation issues because Child was not “born out of wedlock.”

Shirley appealed.

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

The Court explains:

While Shirley is correct insofar as [Putative Father] could have filed a Petition to Establish Paternity on his own behalf, the face of the Petition here plainly indicates he did not do so in this case…. Plaintiffs are the masters of their own complaint, and here Shirley expressly filed on behalf of [Putative Father] acting in a power of attorney capacity, which has been conceded to have been defective, rather than [Putative Father] filing on his own behalf.

The validity of the power of attorney is not irrelevant, as argued by Shirley, but rather is central to whether [Putative Father] is properly a petitioner in the case. The trial judge’s finding that the power of attorney was invalid was not challenged on appeal. Accordingly, it is uncontested that Shirley did not have the power to bring the action on behalf of [Putative Father] in that capacity.

[Putative Father’s] affidavit … does not ask for genetic testing or state a desire to establish paternity.

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[Tennessee law] requires that a “party” to a “contested paternity case” submit the affidavit which alleges paternity and sets forth facts establishing a reasonable possibility of sexual contact that led to the conception of the child…. The prerequisite conditions of the statute for ordering genetic testing are simply not met.

Furthermore, as the trial judge concluded, this affidavit is not a “proper pleading.” It cannot reasonably be construed as a petition to establish paternity either in form or in substance. In terms of form, it does not purport to be a petition to establish paternity, but rather an affidavit. In terms of substance, nowhere in the document does [Putative Father] directly ask the court to establish paternity through genetic testing or otherwise…. In short, the affidavit does not make [Putative Father] a proper “party” to a “contested paternity action.”

*     *     *     *     *

The trial judge’s insistence that [Putative Father] be a proper party to the petition is not a mere technicality. Establishment of paternity brings with it not only rights, but also a host of legal and financial responsibilities. It may well be true, as Shirley contends, that [Putative Father] wishes to seek both these rights and these responsibilities. We do not question this contention. However, given the plain language on the face of the Petition that the Petition is brought by Shirley, who is acting both directly and exercising power of attorney for [Putative Father], and the uncontested invalidity of the power of attorney, we cannot find that the trial judge erred. Establishing paternity is a matter of enormous consequence for multiple parties, including the child, so the trial court declining to disregard the plain language of the Petition, under which [Putative Father] is not truly a party to this action, is a matter of appropriate prudence, not error.

The Court affirmed the trial court’s judgment.

Source: In re Christopher R. (Tennessee Court of Appeals, Western Section, March 25, 2024).

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