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Grandparent visitation in Tennessee

In an ideal world, a child benefits from the love and support of both its parents and its extended family, including grandparents. In fact, this is not always the case, and well-meaning relatives do not always agree about parenting and child rearing. Under some circumstances, courts in this State will order and enforce a schedule of visitation rights for grandparents to spend time with minor grandchildren despite parental objections.

The Tennessee statutes governing grandparent visitation and the judicial decisions interpreting and applying these statutes have evolved over the years. Courts may be loath to override parental decision making with regard to childrearing. This is a complex area of family law, and one that should not be attempted without guidance from an experienced family law practitioner.

Under both the United States Constitution and the Tennessee Constitution, a parent has the fundamental right to direct and control the upbringing of children.[i] Constitutional due process guaranties protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Accordingly, so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.[ii]

Under some, but not all circumstances, family law courts in Tennessee will consider whether to order grandparent visitation. Grandparent visitation is governed by statute, principally Tennessee Code Annotated sections 36-3-306 and 36-3-307.[iii] A court’s analytical task has been summarized as follows:

Because of the great deference that 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 Tenn. Code Ann. 36-6-306(a). Second, 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 foregoing is based on three factors set out in Tenn. Code Ann. 36-6-306(b)(1). In conjunction with this analysis, the court must also determine if the relationship between the child and grandparent is significant based on three more factors set out in Tenn. Code Ann. 36-6-306(b)(2). Third, if the court finds that there is a 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 Tenn. Code Ann. 36-6-307.

Marlene Eskind Moses and Jessica J. Uitto, The Current Status of Tennessee’s Grandparent Visitation Law, 46-JAN Tenn. Bar J. 24. [footnotes omitted.]

The circumstances under which a grandparent is entitled to petition for visitation are listed at Tenn. Code Ann. 36-306(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, parents, or custodian (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 or severe reduction of the relationship, this relationship was severed or severely reduced by the parent, parents, or custodian for reasons other than abuse or presence of a danger of substantial harm to the child, and severance or severe reduction of this relationship is likely to occasion substantial emotional harm to the child.

If none of these six conditions is present, operation of the statute is not triggered and the court lacks authority to inquire into visitation. For example, if the child’s parents are married to one another and no allegation of parental unfitness is raised, the court need not hold a hearing on a request for grandparent visitation.

If at least one of the six factors is present, the court must first determine whether the danger of substantial harm to the child does or does not exist. If not, the court can proceed no further and must dismiss the petition. Tenn. Code Ann. 36-3-306(b) states:

  • In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation or severe reduction of the relationship between an unmarried minor child and the child's grandparent if the court determines, upon proper proof, that:
    • The child had such a significant existing relationship with the grandparent that loss or severe reduction of the relationship is likely to occasion severe emotional harm to the child;
    • The grandparent functioned as a primary caregiver such that cessation or severe reduction of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
    • The child had a significant existing relationship with the grandparent and loss or severe reduction of the relationship presents the danger of other direct and substantial harm to the child.
  • For purposes of this section, a grandparent shall be deemed to have a significant existing relationship with a grandchild if:
    • The child resided with the grandparent for at least six (6) consecutive months;
    • The grandparent was a full-time caretaker of the child for a period of not less than six (6) consecutive months; or
    • The grandparent had frequent visitation with the child who is the subject of the suit for a period of not less than one (1) year.

    If the court initially finds a risk of substantial harm, the court will then consider whether an order of grandparent visitation is in the best interest of the child. The factors to be considered are listed in Tenn. Code Ann. 36-3-307, which states:

    In determining the best interests of the child under § 36-6-306, the court shall consider all pertinent matters, including, but not necessarily limited to, the following:

    • The length and quality of the prior relationship between the child and the grandparent and the role performed by the grandparent;
    • The existing emotional ties of the child to the grandparent;
    • The preference of the child if the child is determined to be of sufficient maturity to express a preference;
    • The effect of hostility between the grandparent and the parent of the child manifested before the child, and the willingness of the grandparent, except in case of abuse, to encourage a close relationship between the child and the parent or parents, or guardian or guardians of the child;
    • The good faith of the grandparent in filing the petition;
    • If the parents are divorced or separated, the time-sharing arrangement that exists between the parents with respect to the child;
    • If one (1) parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person;
    • Any unreasonable deprivation of the grandparent's opportunity to visit with the child by the child’s parents or guardian, including denying visitation of the minor child to the grandparent for a period exceeding ninety (90) days;
    • Whether the grandparent is seeking to maintain a significant existing relationship with the child;
    • Whether awarding grandparent visitation would interfere with the parent-child relationship; and
    • Any court finding that the child’s parent or guardian is unfit.

    The listed factors are not exclusive, and the best interest determination should be made based upon evidence adduced at a hearing. The trial court’s findings and determinations are reviewable by a panel of the Court of Appeals.

    As can be seen from the complexity of the statutes involved, a petition for grandparent visitation involves issues which are not easily determined, and neither a parent nor a grandparent involved in such a matter should risk representing oneself. A matter of that importance calls for the guiding hand of an experienced family law practitioner.

    [i] Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578 (Tenn. 1993).

    [ii] Troxel, at 68-69.

    [iii] There is a separate statute applicable where a child has been removed from the custody of its parents. That situation is beyond the scope of this article.

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