Facts: In 2019, Mother divorced Father and was granted sole custody of their then two-year-old Child.

Following the divorce, Mother moved in with her father, Grandfather. Over the next two years, Grandfather saw Child almost daily.

At Grandfather’s urging, Mother eventually let Child visit Grandmother, who was divorced from Grandfather.

In 2019, Grandmother saw Child about six times. In 2020, Grandmother kept Child on roughly alternating weekends from Friday until Sunday. During the start of the COVID-19 pandemic, Grandmother kept Child for an extended period.

Visitation ended for both grandparents when Mother abruptly left Grandfather’s home with Child in March 2021. Later that summer, Grandmother and Grandfather petitioned for grandparent visitation.

Mother told Grandfather he could visit with Child as her schedule allowed. So, Grandfather decided not to pursue the petition further.

The case went to trial on Grandmother’s petition. The proof showed that Grandmother and Mother had a relationship fraught with difficulties starting in Mother’s early teens. Mother left Grandmother’s home at age 18 when she married Child’s father. After that, Grandmother had no contact with Mother until after Child’s birth. Grandmother visited with Child, but Mother stopped responding to Grandmother’s text messages and phone calls around Child’s first birthday.

Grandmother testified she considered Mother an unfit parent.

Mother testified she ended visitation with both grandparents when she discovered text messages between Grandmother and Grandfather discussing a proposal for Grandmother’s older sister and her husband to adopt Child because Mother was unfit.

Since leaving Grandfather’s home, Mother moved in with a man who had become her fiancé. Grandfather described Mother’s home as “a nice place” that was safe, clean, and neat.

Mother testified she did not believe the lack of a relationship with Grandmother would harm Child. Instead, she thought the relationship could cause harm based on Mother’s experience being raised by Grandmother.

The trial court found that Grandmother was entitled to grandparent visitation. She was awarded one week in June, one week during Christmas break, and one weekend each February, April, August, and October. She was also ordered to have a weekly video call with Child that lasted up to 15 minutes.

Mother appealed

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

Both the federal and state constitutions protect the fundamental right of parents to raise and make decisions about the care and custody of their children. Only when a substantial harm threatens a child’s welfare does the state have a sufficiently compelling justification for the infringement on the fundamental rights of parents to raise their children as they see fit. So, in initial proceedings to determine grandparent visitation, parents may rely on the protection of the presumption of superior parental rights. However, the presumption can be rebutted by showing that the denial of grandparent visitation would cause substantial harm to the child and that grandparent visitation would be in the child’s best interest.

Under Tennessee’s grandparent visitation statute, the court must first determine whether grandparent visitation has been opposed or severely reduced by the parent under one of six factual scenarios. Second, the court must find a danger of a substantial harm to the child and that the grandparent either functioned as a primary caregiver of the child or had a significant existing relationship with the child. Third, if a danger of substantial harm to the child is found, the court must determine whether grandparent visitation would be in the child’s best interest. Only then may a court order reasonable visitation with the grandparent.

The Court found the trial court erred in finding a risk of severe emotional harm:

The [trial] court found that Child would suffer severe emotional harm. But we agree with Mother that the [trial] court did not make many, if any, subsidiary factual findings to show how it reached that determination…. [T]he [trial] court also acknowledged that it did “not have really any significant proof in front of [it] about what issues [Child] might have in the future, or in projection of the future.”

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After a thorough review, we find that the burden was not met and that the evidence preponderates against the factual finding that Child would likely suffer severe emotional harm…. Much of the proof about Child’s interactions with Grandmother, although significant, centered on Grandmother’s commendable work in fostering Child’s social, emotional, and educational development, particularly during the pandemic. But, as the [trial] court remarked, there was no significant proof of any issues Child might face now or in the future. The closest the proof came to addressing any harm was the testimony of Grandmother’s sister. She suggested that Child might blame herself for the loss of visitation with Grandmother.

Beyond the speculation of Grandmother’s sister, the only proof of how Child was faring came from Mother and Grandfather. They both testified that Child was happy. But even were we to assume that the [trial] court did not credit this testimony, the other proof presented does not establish a likelihood of severe emotional harm to Child. Instead, the [trial] court appeared to make a judgment that a child of divorce would benefit from a large circle of family members. That may be true, but it cannot substitute for the need to show a harm to the child, which is the sole protection that parents have against pervasive state interference in the parenting process.

Because Grandmother failed to meet her burden of proof, the Court reversed the trial court’s award of grandparent visitation.

K.O.’s Comment: Court-ordered grandparent visitation is appropriate only in rare situations. It is the exception, not the rule. Family-law attorneys should be cautious in advising clients otherwise. I see too many cases where the grandparents did not understand this.

Source: Fly v. Fly (Tennessee Court of Appeals, Middle Section, December 26, 2024).

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