Facts: Father and Mother are the never-married parents of Child. Mother and Child lived with Maternal Grandmother.

Mother died when Child was eight years old. Starting five months after Mother’s death, Child lived primarily with Father.

For three years following Mother’s death, Maternal Grandmother had visitation every Thursday night, every other weekend, and sporadic additional days during the school week.

After three years, Father transferred Child to another school and reduced Child’s visitation with Maternal Grandmother.

A few years later, Grandmother petitioned for grandparent visitation, requesting to have physical custody of Child every other week and on certain holidays. Father objected.

The trial court found Father opposed Maternal Grandmother’s visitation by severely reducing her visitation, that Maternal Grandmother had functioned as the primary caregiver for Child until Mother’s death, and that removing Child’s relationship with Maternal Grandmother would cause substantial harm to Child.

Child—15 years old at the time—testified that he preferred to alternate one week with Maternal Grandmother and the following week with Father. The trial court found that Child has “strong emotional ties” to Maternal Grandmother.

Maternal Grandmother was awarded visitation every other weekend (Thursday p.m. through Monday a.m.), one week that adjoins her weekend in June and one week that adjoins her weekend in July, and visitation on or near certain holidays.

Father appealed, arguing that the court-ordered visitation schedule was unreasonable and excessive.

On Appeal: The Court of Appeals affirmed the award of grandparent visitation but reversed the visitation schedule.

Tennessee law provides that if a court determines a grandparent is entitled to visitation, the court may create a “reasonable” visitation schedule.

Under both state and federal constitutions, parents have the freedom to make decisions regarding the care and custody of their children without state interference. The Tennessee Constitution requires a compelling justification for a state to intervene in the parent-child relationship. The cessation or severe reduction of the relationship between a grandparent and child that will cause substantial harm to the child is one such justification that lets a court order visitation against the parent’s wishes.

A fit parent and a grandparent do not begin on equal footing. The parent relies on a fundamental constitutional right, and the grandparent does not. Thus, a Tennessee court may not start with the standard for an action between the child’s parents as the baseline and tweak it for grandparent visitation.

Once a Tennessee court determines that visitation is in the child’s best interest, the court is tasked with creating a visitation schedule that advances the state’s compelling interest in minimizing harm to the child. However, because parental rights are fundamental rights, the plan must be narrowly tailored to meet the state’s goal.

Thus, a “reasonable” grandparent visitation schedule is carefully crafted to afford grandparents the visitation necessary to avoid substantial harm to the child and minimize, to the extent possible, interference with the parent-child relationship. The level of visitation necessary to minimize harm depends on the unique facts of each case.

The Court felt this case was similar to In re Diawn B., where the Court found the grandparent visitation schedule was so extensive as to interfere with the parent’s fundamental constitutional rights and was more than is necessary to avoid substantial harm to the child:

Notwithstanding Child’s close relationship with [Maternal] Grandmother, we agree with Father that the trial court’s grandparent visitation award is unreasonable and excessive. As Father suggests, it appears that the trial court ostensibly treated the parties’ dispute as one between parents as opposed to a dispute between a parent and a grandparent…. From the totality of the circumstances, the trial court exceeded its discretion by granting [Maternal] Grandmother an unreasonable amount of visitation in violation of Tennessee [law].

The Court affirmed the trial court’s finding that grandparent visitation was necessary but concluded that the court-ordered visitation schedule was unreasonable. The case was remanded to the trial court to fashion a new schedule.

K.O.’s Comment: On these unique facts—Maternal Grandmother was Child’s primary caregiver for over half of his life, Mother has passed away, and the 15-year-old “mature” Child expresses his preference for equal time—I would have voted to affirm the trial court’s ruling. While four out of 14 days is closer to a parent’s schedule, I think the evidence supports that remedy and is within the range of reasonable alternatives on these facts.

Source: Evans v. Derrick (Tennessee Court of Appeals, Middle Section, September 20, 2024).

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