Tennessee Court Of Appeals Reverses Grandparent Visitation Trial Court Ruling
In most families, grandparents are a healthy and important part of a child’s development. However, the question becomes do grandparents have any rights of visitation under Tennessee law?
Due to the great deference that Tennessee courts give to parental decisions, when the court addresses grandparent visitation rights, it must perform a lengthy and complex three pronged analysis. First, the grandparent seeking the court’s intervention must show that one of six situations exists pursuant to Tennessee Code Annotated 36-6-306(a):
- The father or mother of an unmarried minor child is deceased;
- The child’s father or mother are divorced, legally separated, or were never married to each other;
- The child’s father or mother has been missing for not less than six (6) months;
- The court of another state has ordered grandparent visitation;
- The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child);
- Or the child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.
Second, pursuant to Tennessee Code Annotated 36-6-306(b)(1) the court must determine whether there is a danger of substantial harm to the child if the child does not have visitation with the grandparent. The danger must be what Tennessee law refers to as “substantial harm” as laid out in Ray v. Ray 83 S.W.3d 726 (Tenn. Ct. App. 2001) where substantial harm “connotes a real hazard or danger that is not minor, trivial, or insignificant.”
In conjunction with this analysis, the court must also determine if the relationship between the child and grandparent is significant based on factors set out in Tennessee Code Annotated 36-6-306(b)(2):
- A significant relationship is, according to T.C.A. 36-6-306(b)(1), when the child resided with the grandparent, or the grandparent was a full-time caretaker, for at least six (6) consecutive months. Therefore, if the grandparent was watching the child(ren) when mom or dad were at work may not be enough as the court may not consider that as “full-time” and again the time must be six “consecutive” months.
- A significant relationship may also be when the grandparent had frequent visitation with the child for a period of not less than one (1) year. Therefore, the Court must determine based on the facts if the visitation was “frequent” and that frequency must be for over one year.
Third, if the court finds that there is danger of substantial harm if the child does not have visitation with the grandparent, it must decide whether the visitation would be in the child’s best interest based on seven factors under Tennessee Code Annotated 36-6-307.
The facts in the In Re Camryne B. case are the following: Melisa I. (“Mother”) and Andrew B. (“Father”) are the parents of Camryne B (“Child”). Mother and Father were never married. Celeste B. (“Grandmother”) and Albert B. (“Grandfather”), (collectively “Grandparents”) are the paternal grandmother and paternal step-grandfather of Camryne B. The Mother had another child who was legally adopted by the Paternal Grandparents. Disagreements and hostilities developed between Mother and Father and the Paternal Grandparents, and Mother and Father decided it was in Child’s best interest not to have further visitation with Paternal Grandparents. The Paternal Grandparents filed a petition for grandparent and sibling visitation. The trial court awarded Paternal Grandparents visitation with Child every third weekend as well as telephone contact every other Sunday.
The Mother and Father appealed the trial court’s ruling arguing that the trial court erred in awarding Grandparents visitation under Tennessee Code Annotated 36-6-306.
After reviewing the trial court record, the Tennessee Court of Appeals at Nashville concluded:
In the present case, the trial court failed to adhere to the required statutory analysis. There was no finding that there was a danger of substantial harm to [Child]. Rather, the trial court based its decision largely upon the need to maintain the relationship between [Child] and her half-sister, [which is] a consideration not authorized under Tenn. Code Ann. § 36-6-306. Moreover, the record in this case does not contain evidence that [Child] was in danger of substantial harm due to the cessation of the relationship with Grandparents. Mother and Father presented evidence that [Child] is a well-adjusted child who was not suffering serious emotional harm and that Mother and Father had sound reasons for terminating her relationship with Grandmother. To order grandparent visitation without a finding of substantial harm violates Tenn. Code Ann. § 36-6-306 and the fundamental right of parents to raise their children as they see fit.
As such, the trial court’s award of court ordered grandparent visitation was reversed.
Again the above deals with grandparents “visitation” but under Tennessee law there are other ways for grandparents to obtain “custody” of the grandchildren. To effectively navigate any custody disputes as it relates to your children, or your grandchildren, you should seek the services of an experienced family law attorney. Contact Jim Widrig or any of the attorneys at Widrig Law PLLC to schedule a consultation. Our phone number is 615-417-7800.