The Tennessee courts have made it clear that parents and grandparents do not "begin on equal footing." The right to parent is premised on a fundamental constitutional right, which is not afforded to grandparents. In Tennessee, the visitation rights of grandparents are limited to a very narrow, statutorily defined set of circumstances. These circumstances require that (a) the father or mother of an unmarried minor child is deceased, (b) the child's father or mother are divorced, legally separated, or were never married to each other, (c) the child resided in the home of the grandparents for a period of twelve (12) months or more and was subsequently removed from the home, and a limited other set of circumstances.
When a Tennessee court is considering a petition for grandparent visitation, the court must first determine whether the situation includes one of the above circumstances. If one of these requirements is not met, the grandparent petitioning the Court has no standing to pursue visitation. If the grandparents meets one of the above requirements, then the court determines the presence of a danger of substantial harm to the child if the child's grandparents were not able to have visitation. Substantial harm can be proven by a severe reduction in the relationship of the minor child and the child's grandparent. This can be proven by showing that there was a significant existing relationship with the grandparent and child and that the loss or severe reduction of that relationship would likely cause severe emotional harm or presents the danger of other direct and substantial harm, or by proving that the grandparent functioned as a primary caregiver and that the severe reduction of the relationship could interrupt the daily needs of the child and cause physical or emotional harm to the child.
Tennessee law even defines what will be considered a "significant existing relationship" between a grandparent and a grandchild. There are three ways that a grandparent will be deemed to have a significant existing relationship with a grandchild: 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.
It is clear by the plain language of Tennessee law, that grandparents have very limited visitation rights and this has been further demonstrated by recent Tennessee case law. The Tennessee Court of Appeals in two cases within the last three years have stated that grandparents do not have the right to intervene in a termination of parental rights case brought by DCS against their grandchild's parents, even when the parents are in favor of the grandparents receiving custody of the child after their rights are terminated. As recently as January of 2017, the Tennessee Court of Appeals in the case of In Re C.H., grandparent's biological relationship with a child, in and of itself, is not enough to establish a right to intervene in a termination case brought against a child's parents." This is because under Tennessee law grandparents are not considered necessary parties to the proceedings, unless they are legal guardians or legal custodians of the child at the time the petition is filed. In the same case, the court explains that it is not proper for a grandparent to obtain visitation through intervention in a termination proceeding. However, the court reassures that this does not leave grandparents without a remedy. They may still participate in the termination proceedings as witnesses, pursue adoption of the child, or seek other appropriate options.
Therefore it is important for grandparents to understand what courses of action they must take in order to insure that they can maintain visitation with their grandchildren and what circumstances must exist in order for them to do so.