Many a Tennessee grandparent has been in a situation where access to the grandchild was restricted or prohibited by the child’s mother, father, or both. Parents sometimes refuse grandparent visitation altogether. Not having regular access to a grandchild for seemingly no reason can be a very painful emotional experience and a genuine loss of society. Not just for the grandparent and grandchild, but for everyone in the family.
Although the Tennessee law of grandparent visitation has opened doors for many, exercising grandparent visitation rights is not a sure thing, even when the aged and young have a history of familial association. Making matters more confusing for parents, grandparents, and children alike, Tennessee’s grandparent visitation rights law continues to evolve and change.
In this discussion, we will answer questions about the scope of grandparent visitation rights in Tennessee and how to go about exercising those rights in court. These are some of the questions clients ask when seeking help from a grandparent visitation attorney. For specific legal advice on Tennessee grandparent visitation rights law, consult with Memphis divorce attorney and family lawyer Miles Mason, Sr.
Grandparent Visitation Rights in Tennessee
Grandmothers and grandfathers alike should know in what circumstances they may seek court-ordered access over the objections of their grandchild’s parent or parents. Understand that it is the parents, not the grandparents, who have a fundamental liberty interest in the care, custody, and control of their offspring and adopted children as protected by the Tennessee and U.S. Constitution. For more information about the law of grandparent visitation rights, take a moment to read about Grandparent Visitation Rights Law in Tennessee – the companion page to this discussion.
This is the pivotal question. Do grandparents even have legal rights to visit their grandchildren under Tennessee law? Yes, they do. But those rights are not without limitation.
So long as the child’s parents remain married to each other (and lack of parental fitness is not at issue), they can exercise a level of control over grandparent visits without judicial interference. When the mother and father are fit parents, the law presumes that their child-rearing decisions are in the child’s best interests. Consequently, some weight must accorded their decisions regarding maternal or paternal grandparent visitation.
Tennessee law respects the unquantifiable nature of a grandparent’s love and familial relationship to a grandchild. But the intangible value of that relationship is viewed from the perspective of what is best for the child, not what is best for the grandparent, regardless of age. Furthermore, several statutory hurdles must be jumped before the court can even consider the question of whether grandparent access should be ordered as being in the child’s best interests.
Do Grandparents Have Rights to Grandchildren?
When you view court-ordered grandparent visitation as something beneficial to the child, primarily, and desirable for the grandparent, secondarily, Tennessee grandparent visitation rights law makes greater sense in application.
On the question of whether or not a grandparent has a right of visitation with a grandchild, we need to take a step back and look at the bigger picture. In the year 2000, that picture included the U.S. Supreme Court’s landmark decision in the grandparent visitation rights case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000).
Troxel v. Granville stands for the proposition, in part, that every parent enjoys a fundamental liberty interest and constitutional right to rear his or her offspring and adopted children without government interference (as in court-ordered grandparent visitation.) This fundamental right is protected by the Due Process Clause of the U.S. Constitution. Furthermore, there is a legal presumption that fit parents act in the best interests of their children. That the fit parents’ decision to refuse or restrict visitation by a grandparent (or some other non-parent) must be accorded some “special weight.”
For the grandparent seeking visitation, Troxel v. Granville is the standard protecting the fit parents’ decision-making. Tennessee law cannot unconstitutionally infringe upon the fit parent’s right to rear his or her child. A grandparent may feel that he or she is just as important to the child’s happiness and welfare as the parent is, albeit in a special way. Which may in fact be so. But under federal and state law, the grandparent is still a non-parent. And a non-parent does not have the right to obstruct a fit parent’s right to raise the child as he or she deems appropriate. There is one notable exception – when the parent’s decision to preclude or restrict grandparent visitation presents a danger of substantial harm to the child.
In the Troxel v. Granville case mentioned above, the paternal grandparents sought two weekends of overnight visitation each month and two weeks visitation each summer. The children’s mother did not prohibit the grandparents’ access, but chose to limit the occasions to one day a month with no overnight stays. The trial court ordered grandparent visitation one weekend each month, a week in summer, and four hours on each child’s birthday – a substantial departure from what the mother, a fit parent, desired. The mother ultimately prevailed on constitutional grounds.
Yet the parties’ differing views on how much visitation is enough brings up an important point. What kind of Tennessee visitation arrangement should a grandparent seek? How much time with a grandchild is enough time? How far must the child travel to the grandparents’ residence? Will the grandparent stay at the child’s residence for overnight access?
The grandparent who seeks visitation should have a plan. How much time and how often over the course of the year is reasonable access to the child? With pre-school aged children, particularly, should visitation only be in the parent’s presence? Will the child have overnight stays with the grandparent? Will the grandparent have access time on holidays and birthdays?
Creating a desirable plan for reasonable visitation take some effort. To get started, there are many helpful grandparent visitation cases summarized on our website. Visit the Grandparents’ Visitation Rights category or the Tennessee Family Law Blog for updates, analysis, and case law summaries.
Before asserting one’s right of access to grandchildren, under what circumstances can the Tennessee court consider such visitation?
The Tennessee legislature enacted three visitation statutes specifically directed at grandparents. These laws enable grandparents to assert visitation rights with their grandchildren, but only in particular situations. Grandparents related to the child by blood or adoption do not have carte blanche to demand visitation solely because such access is in the best interests of the child. Although an essential consideration, it is not the only consideration.
A grandparent has a right to file a petition for visitation under Tennessee law. The right to petition and success on the merits, however, are two different things. Be prepared. Seek legal advice from an experienced Tennessee family lawyer before deciding on a course of action.
In Tennessee, the court’s power to grant a grandparent’s request for visitation over the parents’ objection is strictly limited. Such judicial authority only exists when the family unit is not intact, which will become apparent later in this discussion. If the family is intact and has not subjected itself to the court’s jurisdiction, then the court may not interject itself by awarding visitation to a grandparent over the parent’s opposition. The Tennessee Supreme Court has ruled that it is an invasion of the parent’s privacy to interfere in his or her child-raising techniques where there was no evidence of harm to the children. Hawk v. Hawk, 855 S.W.2d (Tenn. 1993).
When the parent does not oppose the visitation plan, the court may order grandparent visitation. (If the parent and grandparent were in agreement, then it’s unlikely there would be a pressing need to file a petition for visitation in the first place.) Note that a “parent” is a biological, legal or adoptive parent, but is not a legal guardian.
However, if the custodial parent opposes such access, then the first of these statutes necessitates a hearing on the matter in certain limited situations. Paraphrasing T.C.A. § 36-6-306(a), Tennessee law provides for a grandparent visitation hearing only in the following six circumstances:
See T.C.A. § 36-6-306(a) for exact statutory language.
Given these limitations, for the best possible outcome the grandparents seeking to assert visitation rights should consult an attorney and must be well-prepared for the hearing.
Tennessee law is very specific about the circumstances in which grandparents may seek a hearing in these cases. What happens when parents are married, present, and fit, there is no history of child abuse, neglect, or endangerment, yet the parent has denied or limited access to less than the grandparent desires? In that instance, the grandparent would also carry the burden of proving the grandchild would be substantially harmed if regular visits were not granted.
If the grandparent has been granted a hearing, then the court must determine whether there is a danger of substantial harm to the child should visitation with the grandmother or grandfather be restricted or stopped.
In these cases, the term “substantial” means a real hazard or danger, one that is “not minor, trivial or insignificant.” Additionally, the harm must be “sufficiently probable” (it need not be an inevitability, but it cannot be a mere theoretical possibility either). In re Camryne (Tenn. Ct. App. 2014).
The court is required by T.C.A. § 36-6-306(b)(1), paraphrased below, to make sufficient findings of fact based upon proof supporting one or more of three factors. All to determine whether the presence of substantial harm or severe emotional harm to the child might exist:
For the court to determine whether the aforementioned conditions are satisfied and that the presence of a danger of substantial harm to the child exists, the judge must determine whether the relationship between the grandparent and the grandchild is “significant.”
Once again, we look to Tennessee statutory law for the test of whether the grandparent’s relationship with the child is “significant” enough to permit burdening the parent’s fundamental rights for the benefit of the child. Paraphrasing T.C.A § 36-6-306(b)(2), the relationship is deemed to be a significant if one or more of the following are proved:
See T.C.A. § 36-6-306(b) for exact statutory language.
Should the court find that there is a danger of substantial harm to the child, then the judge must further determine whether grandparent visitation would be in the child’s best interest.
Lastly, but in no way of least concern, is the requirement that grandparent visitation be in the best interest of the child if awarded by the court. For the pertinent elements to the best interest analysis, we turn to a different Tennessee statute. In applying T.C.A. § 36-6-307, the court should consider these 11 important factors:
See T.C.A. § 36-6-307 for exact statutory language.
A visitation hearing is necessary if the custodial parent objects to grandparental access. But never underestimate the power of negotiation. Settlement of these family issues is always possible and, when productive, can eliminate the need (and cost) for continued litigation between family members. Parent and grandparent are free to negotiate and settle on an acceptable visitation plan if they can, perhaps supervised visitation, with their attorneys’ assistance. Mediation may also be helpful as a way of settling the dispute on terms that satisfy both party’s needs and desires without further litigation.
When parents and grandparents are in conflict over visitation time with a minor child, disappointment and resultant hard feelings can burden their family long into the future. Most grandparents consider their grandchildren to be the greatest gift of their adult lives. They hope to share their life-long experiences, family history, wisdom, and love with grandchildren for as long as time allows. But there are many legal considerations to overcome while the grandchild remains a minor, not the least of which is the fit, married parents’ liberty interest in raising children without court intervention.
