Grandparent Visitation Rights

            Tennessee Code Annotated §36-6-306 is the grandparents visitation rights statute in Tennessee. A dispute between a parent and a grandparent over visitation with a child presents a conflict between the parent’s constitutional right to make decisions about the care and custody of the child and the grandparent’s right to visitation under the law. Under the Unites States Constitution and the Tennessee Constitution, the right of a parent to raise a child is a protected fundamental liberty. Grandparents are not entitled to regular visitation when a parent does not oppose giving them visitation. Tennessee appellate courts have ruled that “[t]he Grandparent Visitation Statute cannot be used by grandparents who think they are entitled to more or different visitation in the absence of a finding that the parents actually or effectively ‘opposed’ visitation.” 

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            When a grandparent seeks help from the courts to obtain visitation with their grandchild, they must first show that one of six situations exists pursuant to Tenn. Code Ann. § 36-6-306(a). These situations are:

 

(1) The father or mother of an unmarried minor child is deceased;

(2) The child's father or mother are divorced, legally separated, or were never married to each other;

(3) The child's father or mother has been missing for not less than six (6) months;

(4) The court of another state has ordered grandparent visitation;

(5) 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

(6) 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.

 

Next, 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. Pursuant to the statute, this may be shown upon proper proof that:

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(A) 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;

(B) 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

(C) 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.

 

A grandparent shall be deemed to have a “significant existing relationship” with a grandchild if:

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(A) The child resided with the grandparent for at least six (6) consecutive months;

(B) The grandparent was a full-time caretaker of the child for a period of not less than six (6) consecutive months; or

(C) 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.

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            If the court finds that there is danger of substantial harm if the child does not have visitation with the grandparent, it must then make a determination whether the visitation would be in the child’s best interest based upon “all pertinent matters,” including, but not necessarily limited to, the following statutory factors:

 

(1) The length and quality of the prior relationship between the child and the grandparent and the role performed by the grandparent;

(2) The existing emotional ties of the child to the grandparent;

(3) The preference of the child if the child is determined to be of sufficient maturity to express a preference;

(4) 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;

(5) The good faith of the grandparent in filing the petition;

(6) If the parents are divorced or separated, the time-sharing arrangement that exists between the parents with respect to the child;

(7) If one (1) parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person;

(8) 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;

(9) Whether the grandparent is seeking to maintain a significant existing relationship with the child;

(10) Whether awarding grandparent visitation would interfere with the parent-child relationship; and

(11) Any court finding that the child's parent or guardian is unfit. 

 

            The Tennessee Court of Appeals has explained that “the Grandparent Visitation Statute is not even implicated unless the grandparent can establish that visitation was opposed [or severely reduced] by the custodial parent before the petition was filed” and "if the grandparent is unable to prove either opposition to visitation or severe reduction in visitation, a trial court has no basis for engaging in substantial harm analysis or awarding the petitioner any relief." As explained by the Tennessee Supreme Court, “[t]he term ‘opposed’ includes situations both where visitation is denied totally and where visitation is technically not opposed, but the frequency and/or conditions imposed by the parents on visitation are such that it equates to a denial of visitation.” Additionally, “the Legislature’s use of the words, ‘is opposed by,’ means actual existing opposition—not likely future opposition.” Opposition may be proven “by presenting evidence of actual or constructive denial of visitation.” “Constructive denial occurs when the custodial parent limits or restricts the frequency or conditions of visitation so that it is the same as a denial of visitation.”