Most grandparents would give anything to spend more time with their grandchildren, but familial relationships can get complicated. For a grandparent, not being able to have a relationship with their grandchild can be a very emotional experience. Tennessee law recognizes the nature of a grandparent’s love and relationship to the grandchild, but the value of that relationship is viewed from the perspective of what is best for the child, not for the grandparents. Thus, several statutory hurdles must be completed before the court will consider whether a relationship with the grandparents should be ordered.
Grandparent visitation is a legal right that grandparents in some jurisdictions must have court-ordered contact (or visitation) with their grandchildren. While not as common as parental visitation, grandparent visitation rights have been recognized in all states for the past forty (40) years. The main purpose of these rights is to ensure that a child has access to the emotional and developmental benefits of having a grandparent in their life. Such custody rights of grandparents may be exercised when the child’s parents are unable to properly care for their child, or if they are deceased or incarcerated. The law of grandparent visitation has opened many doors, but it is not a sure thing and continues to evolve and change.
To determine whether a grandparent has a right of visitation with the grandchild, we must take a step back and look at the bigger picture that is laid out below.
How do Grandparents get Visitation Rights?
To get legal visitation, grandparents must file a petition against the parent or parents in the county where the child lives. Depending on the county, the petition might be filed in the circuit court, juvenile court, or general session court. A hearing will be conducted, during which the judge will consider the entire situation, and if it is appropriate, will order a visitation schedule that the judge believes to be in the best interest of the children.
Standard for Grandparent Visitation.
In the year 2000, the U.S. Supreme Court’s landmark decision in the grandparent visitation rights case of Troxel v. Granville, 530 U.S. 57 (2000), stands for the proposition that every parent enjoys a fundamental liberty interest and constitutional right to care for his or her offspring and adopted children without government interference. This fundamental right is protected by the U.S. Constitution, and there is a legal presumption that fit parents act in the best interests of their children. The fit parents’ decision to refuse or restrict visitation by a grandparent must be accorded some special weight.
Under Troxel, Tennessee law cannot unconstitutionally infringe upon the fit parents’ right to care for 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, which may in fact be so. However, a grandparent is still considered a non-parent and does not have the right to block 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 restrict grandparent visitation presents a danger of substantial harm to the child.
Beltz v. Heffner, 2019 Tenn. App. LEXIS 523 (Tenn. Ct. App. July 18, 2019).
On October 30, 2019, the Court of Appeals of Tennessee at Knoxville reversed a prior decision by the trial court dealing with Tennessee’s Grandparent Visitation Statute.
In short, the parents of a deceased mother, with a new-born child, filed a petition to get visitation with their three-month-old granddaughter. The child’s father opposed the request and filed a motion to terminate on ground that there was no danger of substantial harm to the child if visitation was denied, because there was no evidence that the grandparents had a significant relationship with the child. The grandparents fought the motion relying on the Grandparent Visitation Statute, which establishes a rebuttable presumption of substantial harm to the child if visitation was denied because their daughter, the child’s mother, was deceased.
Under Beltz, grandparents, as parents of a child’s deceased parent, are entitled to a rebuttable presumption of substantial harm to the child, if visitation was denied, without having to establish that a significant relationship with the grandchild exists.
Tennessee Code Annotated § 36-6-306(a):
Paraphrasing the Grandparent Visitation Statute, Tennessee law provides for a grandparent visitation hearing only in the following six circumstances:
- Death of a Parent: one of the child’s parents is deceased;
- Missing Parent: one of the child’s parents is missing and has been missing for at least six (6) months;
- Parents’ Marital Status: the child’s parents are not married to each other or, if they were married to each other, they are now divorced or legally separated;
- Foreign Grandparent Visitation Order: the grandparent has a visitation order from another state granting access to the child;
- Presumption of Irreparable Harm; for at least twelve (12) months, the child lived with the grandparent before being removed from the grandparent’s home by the parent or parents. In this situation, Tennessee law creates a rebuttable presumption that the child would be harmed if grandparent visitation were denied; or
- Significant Relationship; for at least twelve (12) months immediately before the parent or parents put a stop to access, the grandparent and grandchild had “maintained a significant existing relationship.” Under Tennessee law, terminating a significant existing relationship of this kind is likely to cause substantial emotional harm to the child (but there is no legal presumption that it will). This assumes, however, that the parent did not sever the relationship to prevent substantial harm to the child or abuse of the child.
Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider granting visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require the court to consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of substantial harm to the grandchild if visitation with the grandparents is restricted or stopped.
What is the Best Interest of the Child?
To determine the best interest analysis, the court should consider:
- Duration and Quality of Relationship: the length and quality of the prior relationship between child and grandparent, and the role the grandparent played in the child’s life;
- Emotional Ties: the emotional ties existing between the grandchild and grandparent;
- Child’s Preference: what is the child’s preference regarding grandparent visits, if mature enough to express such opinion;
- Effect of Lingering Hostility: the effects of hostility, if any, between grandparent and parent as manifested before the child. Except in cases where there has been abuse, whether the grandparent is willing to encourage a close relationship between parent and child;
- Good Faith Petitioner: if the grandparent’s visitation petition was filed in good faith;
- Parenting Time: parenting time arrangement if the parents are divorced or separated;
- Deceased or Missing Parent: whether the grandparent is the biological or adoptive parent of the child’s deceased or missing parent;
- Unreasonable Denial: if the parent unreasonably deprived the grandparent of opportunity to visit the child, and if so, if the visitation has been unreasonably denied for more than 90 days;
- Significant Relationship: if a grandparents’ desire is to maintain a significant existing relationship with the child;
- Parent-Child Relationship: if the grandparent visitation would interfere with the parent’s relationship with the child, if granted; and/or
- Parental Unfitness: whether the court found the parent to be unfit.
How to Determine if You Have a Significant Relationship with the Child.
The relationship is found to be significant if one or more of the following are proved:
- Child Lived with Grandparent: the child resided with his or her grandparent for six consecutive months or longer;
- Grandparent as Caretaker the grandparent was the child’s full-time caretaker for at least six months; and/or
- Year-Long Visitation: the grandparent has already enjoyed frequent visitation with the child for at least one year.
What does “Substantial Harm” Mean?
The term “substantial” means a real hazard or danger, one that is “not minor, trivial or insignificant.” Additionally, such harm must be “sufficiently probable” (i.e. it need not be an inevitability, but I cannot be a mere theoretical possibility either.) In re Camryne (Tenn. Ct. App. 2014).
A judge must first determine whether the relationship between the grandparent and grandchild is “significant.” If a significant relationship is found, the court must determine:
- Likelihood of Severe Emotional Harm: if a significant relationship exists between the grandparent and grandchild, such that losing that association is likely to cause the child severe emotional harm;
- Grandparent as Primary Caretaker: whether the grandparent served as the child’s primary caretaker, such that cessation of the relationship would interrupt the child’s daily needs which, in turn, may cause physical or emotional harm to the child; and/or
- Other Direct and Substantial Harm: would the loss of said significant relationship between the child and grandparent presents a danger of other direct and substantial harm to the child.
When the child’s parent is deceased and a petitioner is the parent of that deceased parent, the grandparents does not need to show that the child had a significant relationship with them. Rather, all that needs to be shown is that there was a termination or severe reduction of the relationship between the child and grandparents. Tennessee Grandparent Visitation Statute defines “severe reduction” as reduction to no contact or token visitation. “Token visitation” is defined as a visitation that, under the circumstances of the individual case, constitutes nothing more than brief visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child. Determining whether visitation was “token” requires examination of the frequency, duration, and quality of the visits that occurred, which is a fact intensive inquiry.
What to Do if This Affects You
Grandparents 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 children and adopted children.
For more information and to find out how this could impact your family, consult with a family law attorney at Breeding Henry Baysan, PC today.