Tennessee’s grandparent visitation statute was designed to protect the bonds children may have with their grandparents. But in my opinion, one part of that law—TCA § 36-6-306(b)(4)—crosses a constitutional line.
I recently had a case where this was an issue. My client wanted to challenge the statute’s constitutionality, so I researched this issue in depth and started drafting my legal argument. But after the grandparents lost a hearing for injunctive relief where they presented the same testimony they would at trial, they read the writing on the wall and voluntarily dismissed their petition, thereby preventing me from attacking the constitutionality of the statute.
I hope that by shedding light on this issue, other lawyers will feel empowered to challenge this statute when the opportunity arises.
The Bedrock Principle: Parental Rights
At its core, this is about parents’ fundamental right to raise their children. Both the U.S. Constitution and the Tennessee Constitution recognize that parents have a fundamental liberty interest in making decisions concerning the care, custody, and control of their children. This is a bedrock principle of family law. The government, including our courts, must have a compelling reason before interfering with how fit parents raise their kids.
In grandparent visitation disputes, Tennessee law has long reflected this constitutional respect for parental authority. Courts cannot force visitation on a fit parent unless not doing so would cause harm to the child. The only reason the state should step in is to prevent serious harm. Tennessee’s grandparent visitation statute, § 36-6-306, was written with that idea in mind: grandparents must first prove that denying them visitation would likely cause substantial harm to the child. Only after clearing that high bar can a court consider whether visits are in the child’s best interest. This two-step safeguard exists to ensure that a judge isn’t second-guessing a fit parent’s decisions unless it’s truly necessary to protect a child.
The Problem with the Presumption
In 2010, the Tennessee legislature amended the statute and added subsection (b)(4), which creates a rebuttable presumption of substantial harm in one specific situation. Under § 36-6-306(b)(4), if one of the child’s parents has died and the grandparent seeking visitation is the parent of that deceased parent, the law automatically presumes that cutting off the relationship between the grandparent and the child will cause substantial harm. In other words, when one parent dies, the surviving parent’s decision to limit or deny contact with the deceased parent’s mom or dad is presumed by law to be harmful to the child.
This presumption is “rebuttable,” meaning the surviving parent can present evidence to try to prove the child wouldn’t be harmed. But the key is that the burden of proof is now shifted onto the parent to disprove harm, instead of on the grandparent to prove harm. That is a dramatic shift from the usual rule and a fatal flaw under the Constitution.
Why This Is a Big Deal
Forcing fit parents to prove their own decision is not harmful turns constitutional principles upside down. A fit parent is presumed in our law to act in the child’s best interests. The state must defer to that parent’s judgment unless there’s convincing evidence to the contrary. By presuming harm after a parent’s death, § 36-6-306(b)(4) casts doubt on the surviving parent’s judgment without any individualized evidence. It treats the surviving parent as if they are harming their child simply by choosing to pause or limit grandparent visits—even if, for example, the child barely knows those grandparents or needs time to heal after the loss of a parent. The law doesn’t require the grandparents to show that denying visitation would truly endanger the child. Instead, the parent must prove a negative: that the child won’t be harmed by not seeing the grandparents. That flips the constitutional standard on its head.
Substantive Due Process Concerns
Substantive due process protects fundamental rights from unwarranted government intrusion. Parenting one’s child is such a right. When the government intrudes on that fundamental right, it must have a compelling interest and use the least restrictive means necessary. Protecting children from serious harm is certainly a compelling interest. But § 36-6-306(b)(4) isn’t narrowly tailored to that interest—it assumes harm by default in every situation where a parent has died, regardless of the actual relationship between the child and the grandparent or the circumstances of the family. It’s a one-size-fits-all assumption.
This means the state can intervene in a family even if the child is perfectly fine and safe without the grandparent’s involvement. That is a drastic measure. In my view, it cannot survive the strict scrutiny that applies when a law burdens a fundamental right like parenting. A law that takes the decision out of a fit parent’s hands and forces them to litigate to defend their decision, without requiring concrete evidence of harm to the child, goes beyond what substantive due process allows.
A Better Approach Already Exists
I’m not saying grandparents should have no recourse or that a surviving parent’s decisions are always beyond question. If substantial harm truly will occur to a child by cutting off a grandparent—say the grandparent has raised the child for years, or the child has a deep bond that, if severed, would emotionally devastate them—then the law can intervene. Tennessee’s statute already provides for that under the other parts of § 36-6-306: the grandparent can present proof of a significant existing relationship and the harm its loss would cause. That requirement is a check and balance: it ensures we only override parental autonomy when a child’s welfare truly is at risk.
But § 36-6-306(b)(4) short-circuits this safeguard by presuming harm automatically when a parent has died. The death of a parent does not magically create a strong grandparent-grandchild bond or automatically make the grandparent a crucial figure in the child’s life. Every family is different. Some children may have seen a particular grandparent only a few times; others might be very close. The law’s presumption makes no distinction. That means a surviving parent who knows their child best must fight a legal presumption, even if common sense says a lack of visits wouldn’t harm the child. In many cases, forcing visitation could be more disruptive, especially soon after the child has lost a parent.
Equal Protection Issues
There’s also an equal protection concern. Under the Tennessee Constitution, laws cannot create arbitrary classifications that treat similarly situated people differently without a good reason. Section 36-6-306(b)(4) establishes a classification where families in which one parent is deceased are treated differently from families in which both parents are living or families where the parent is alive but estranged from the grandparent.
In a two-parent household, a grandparent must prove substantial harm, and the burden is on them. But if one parent tragically passes away, suddenly the survivor is put at a disadvantage by the law’s presumption. The surviving parent’s rights are essentially deemed less robust simply because of their spouse’s or co-parent’s death.
Is there a rational and fair basis for that difference? The stated intent is to ensure children maintain ties to the deceased parent’s family, which is a well-meaning goal. However, from a constitutional perspective, this broad-brush approach is over-inclusive and not sufficiently justified.
The surviving parent is effectively presumed to be doing something harmful if they choose to limit contact with the deceased parent’s relatives, whereas a similarly cautious parent in a two-parent situation would face no such presumption. This is an arbitrary distinction. Giving the parents of a deceased parent an automatic leg-up in the courtroom, regardless of circumstances, treats one category of families differently from others.
When a law burdens a fundamental right like parenting and draws a line between two sets of people, such as surviving parents versus other parents, that classification must be examined very closely by courts. I believe that, upon examination, it would be found unconstitutional because it isn’t carefully tailored. It’s a blanket assumption. Equal protection in this context ties back into fundamental rights as well: you can’t just strip a particular group of the usual protection of the law—the presumption that fit parents act in a child’s best interest—without a very, very good reason. And here, that reason is not evidenced in every case covered by the statute.
The Practical Impact
In practical terms, § 36-6-306(b)(4) forces a surviving parent into a defensive posture from the start. Instead of holding the grandparents to their usual burden of proof, the law tells the parent, “You’re presumed wrong, now prove that you’re right.” This is the opposite of what constitutional principles teach us—namely, we presume the parent is right until proven otherwise, not vice versa. The moment a parent dies, the surviving parent’s constitutional rights are diminished and the state’s power to intervene grows—all without evidence of harm to the child. That is deeply troubling.
Conclusion
For these reasons, I believe TCA § 36-6-306(b)(4) cannot withstand constitutional scrutiny. It undermines the fundamental right of parents to make decisions for their children free from unwarranted interference, and it does so in a way that treats one group of parents as less trustworthy than others.
I intentionally chose not to cite caselaw because this is a blog post, not a legal brief, but there is caselaw supporting every statement of law in this post. Similar provisions in other states have been struck down. In my opinion, it’s only a matter of time before it happens in Tennessee.
Ultimately, this debate isn’t about being “pro-grandparent” or “pro-parent”—it’s about the proper role of the state. Tennessee can protect children without overreaching into the domain of fit parents. In my view, § 36-6-306(b)(4) is an overreach. Good intentions aside, it tips the scales too far away from parental rights. The courts should correct that, and I’m hopeful they will when given the chance.
Parents’ rights and children’s best interests are both served when we ensure that any interference by the government is truly justified. TCA § 36-6-306(b)(4) fails that test, and that’s why I believe it should be struck down. If you’re a lawyer handling a grandparent-visitation case and this presumption comes into play, consider challenging its constitutionality. Argue that a presumption of harm in favor of a nonparent violates substantive due process and equal protection rights. By doing so, you not only advocate for your client’s rights as a parent—you also help ensure that Tennessee law adheres to our constitutional values. And call me if you need help. I was so close, but the nonsuit took away my chance to do it.
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