From the moment of birth, a seemingly inextricable linkage between grandparent and grandchild is present. Both parent and grandparent are committed to what is best and what is needed for the child. Unfortunately, the idyllic relationship among grandparent, parent, and grandchild does not always last as disruptive events occur. Drug addiction, a prison sentence, death of a parent, estrangements, rifts, and unresolvable disputes between the grandparent and their child may lead the parent to tell the grandparent, “you cannot see my child ever again.” At these junctures, and particularly if a grandparent has assumed significant responsibility for the life of the grandchild, grandparents will ask, “What are my legal rights as a grandparent?”
The United States Constitution protects parental rights to make decisions on a child’s behalf, and parents will almost always prevail in any dispute between parents and grandparents unless the grandparents can show the child’s best interest justifies the grandparent’s visitation and that a denial of visitation will result in actual harm to the child. Although there is no Federal law regarding grandparent’s visitation rights, Troxel v. Granville established the basis for most state statutes today on this issue. This ruling essentially places the parent’s reasons for opposing grandparents’ visitation as the central issue for the judge to consider. Parents have the first say in whether grandparents may see the grandchild, and grandparent visits should not interfere with the parent-child relationship.
Nonetheless, grandparents do have rights under Tennessee law. These rights are well-defined, require equally well-defined circumstances to be established, and should not be taken for granted by the grandparents. Tennessee courts give considerable deference to parental decisions and perform analysis consistent with Tennessee Codes Annotated §36-6-306 and §36-6-307. Any grandparent contemplating a legal action should read these statutes before taking that action.
Who is a grandparent?
For legal purposes in Tennessee, grandparents include biological grandparents, spouses of biological grandparents, and parents of an adoptive parent. Grandparents, great-grandparents, and great-great-grandparents all enjoy equal status with regards to petitioning for visitation and standing before the court. Age alone is not a sufficient justification for rejecting an otherwise properly prepared and presented petition asking for court-ordered visitation with a grandchild.
Right to a hearing for visitation
Grandparents generally have the right to a hearing to determine visitation in Tennessee if they have had a significant relationship with the child. Exceptions to this right occur if the parent ended the grandparent-child relationship because the grandparents were abusive or because the child was in danger when with the grandparents. Even if the parents are not living together due to divorce or separation, or if they were never married, the grandparents must be given a hearing on their petition for visitation. The grandparents also must receive a hearing if one of the child’s parents has died or been missing for at least six months. Following the death of a parent, the court will likely assume that it will harm a child to lose a relationship with the grandparents who were the mother and father of that deceased parent. Do not assume, though, that grandparent visitation is the same as parenting time. Very different rules apply to grandparent visitation.
T.C.A. 36-6-306 is often called the Grandparents’ Visitation Statute. It requires that a grandparent seeking the intervention of a court show that one of these six situations exists:
(1) At least one parent of the minor child is deceased;
(2) The parents are divorced, legally separated, or were never married to each other;
(3) One of the parents has been missing for at least months;
(4) A court in another state previously ordered grandparent visitation;
(5) The child lived in the grandparent’s home for a minimum of twelve months before being removed from the home by the parent or parents (establishing the possibility that denial of visitation may result in harm to the child); or
(6) The grandparent and child had a significant existing relationship for at least twelve months immediately preceding severance of the relationship, the parent(s) severed the relationship for reasons other than abuse or potential for substantial harm to the child, and breaking the grandparent-child relationship will likely cause the child substantial emotional harm.
Court determination: danger of harm to child
Following this initial assessment, the court must determine whether a danger of substantial harm exists for the child if an established relationship with the grandparent is disrupted. The court may make a finding of substantial harm if there is proof that one of the following conditions outlined in T.C.A. § 36-6-306(b)(1) exists:
(A) The significant existing grandparent-child relationship is so close that breaking that relationship might cause severe emotional harm to the child;
(B) The grandparent served as a primary caregiver, and severance of the relationship could prevent the child’s daily needs from being met; or
(C) Loss of the significant existing grandparent-child relationship puts the child in danger of other direct and substantial harm.
A significant existing relationship with a grandparent includes, per statute:
(A) The grandparent and child residing together for at least six consecutive months;
(B) The grandparent caring for the child full-time for a minimum of six consecutive months; or
(C) Frequent visitation between the grandparent and child for a minimum of one year.
The petitioning grandparent does not have to provide expert testimony or affidavit to establish their significant existing relationship with the grandchild or prove that the loss of that relationship will likely cause severe emotional harm to the child. Rather, the court will consider whether the facts of the case would cause a reasonable person to believe there was a significant existing relationship between grandparent and grandchild and whether cessation of the relationship would likely cause severe emotional harm to the child.
With a finding of danger of substantial harm to the child because the child’s parents are unfit or unable to care for the child, the court will then determine whether grandparent visitation would be in the best interest of the child based upon factors outlined in T.C.A. 36-6-307. These factors include, but are not limited to, the length and quality of the prior grandparent-child relationship, the role of the grandparent(s) in the child’s life, the preference of the child, the effect of grandparent visitation on the parent-child relationship, and the absence or court-determined unfitness of one or more parents.
If the court’s determination is favorable to the grandparent, reasonable visitation may be ordered with the frequency to be determined by the court. But the outcome is by no means guaranteed, and as previously mentioned, courts tend to favor parental authority over grandparents’ privileges. Grandparents’ rights issues are very complex, and grandparents are encouraged to contact an attorney familiar with Tennessee law for assistance with pursuing visitation rights.