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The Current Status of Tennessee's Grandparent Visitation Law
1. History of Tennessee's Grandparent Visitation Statute
Tennessee's Constitution is deeply rooted in the concept of individual liberties. As such, Tennessee case law, historically, has strongly protected parental rights, which constitute a fundamental liberty interest under Article 1, Section 8 of the Tennessee Constitution.
Tennessee's staunch support of parental rights was reinforced when the United States Supreme Court addressed the controversial issue of grandparent visitation rights in Troxel v. Granville, 530 U.S. 57 (2000). The High Court held that "the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court."
Tennessee's legislature was grappling with the issue of grandparent visitation as early as the 1960s. The original grandparent visitation statute authorized courts to permit grandparent visitation rights if those rights were found to be in the best interest of the child at issue. However, in 1997 and again in 2000, the statute was amended to integrate the Tennessee Supreme Court's landmark holding in Hawk, supra. The Hawk Court interpreted the grandparent visitation statute and held that courts cannot interfere with parents' decisions regarding grandparent visitation without a showing that the child would be substantially harmed by the denial of the visitation. The Court's decision in Hawk v. Hawk was later affirmed in Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) and in Ellison v. Ellison, 994 S.W.2d 623 (Tenn. 1998). To date, courts must first establish whether there is a danger of substantial harm before determining whether the visitation would be in the child's best interest.
2. The Court's Three-Pronged Analysis
Beacuse of the great deference that courts give to parental decisions, when the court addresses grandparent visitation rights, it must perform a lengthy and complex three-pronged analysis. First, the grandparent seeking the court's intervention must show that one of six situations exists pursuant to Tenn. Code Ann. §36-6-306(a). Second, 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. The foregoing is based on three factors set out in Tenn. Code Ann. §36-6-306(b)(1). In conjunction with this analysis, the court must also determine if the relationship between the child and grandparent is significant based on three more factors set out in Tenn. Code Ann. §36-6-306(b)(2). Third, if the court finds that there is danger of substantial harm if the child does not have visitation with the grandparent, it must decide whether the visitation would be in the child's best interest based on seven factors under Tenn. Code Ann. §36-6-307.
3. Grandparent Visitation Case Law
The following case law highlights some of the newest and most recent developments in grandparent visitation law.
A. Triggering the Grandparent Visitation Statute: Opposition to Visitation Required
In Rogers v. Turner, 2008 WL 4613562 (Tenn. Ct. App.), the Court of Appeals reversed the trial court's order establishing a visitation schedule with reasonable restrictions and dismissed the case. The grandmother filed a petition pursuant to Tenn. Code Ann. § 36-6-306 against the parents for visitation with her grandchildren. The trial court held that Tenn. Code Ann. §36-6-306 is not implicated unless visitation is opposed by the custodial parent or parents. The trial court defined the term "opposed" to include situations where visitation is totally denied as well as where the frequency and/or conditions imposed by the parents on the visitation are such that it rises to the level of a denial of visitation. Here, since the parents were not opposing the visitation, but rather wanted to impose reasonable parameters on the visitation, Tenn. Code Ann. §36-6-306 was not triggered, and the trial court should have dismissed the case.
B. The Court's Three-Pronged Analysis Interpreted
In Carr v. McMillan, 2008 WL 2078058 (Tenn. Ct. App.), the Court of Appeals affirmed the trial court's decision to award the grandmother 78 days of visitation annually with her five-year-old grandson, whose mother had recently died. The child's father appealed, arguing that the trial court erred in finding that the severance of the relationship between the child and grandmother would result in present danger and substantial harm to the child or that it was likely to cause severe emotional harm to the child pursuant to Tenn. Code Ann. §36-6-306(b)(1). He further argued that the visitation schedule was not reasonable and not in the best interest of the child.
First, the trial court found that the petition was proper pursuant to Tenn. Code Ann. §36-6-306(a)(5). Second, the trial court found that the grandmother had acted as a primary caregiver and served as the only mother-like figure to her grandson before and after his mother's death. The grandmother picked up her grandson from daycare, took him to the doctor, barbershop, library, zoo and park. She met his daily needs by providing him meals, bathing him, reading to him before bed, putting him to bed and comforting him when he mourned the loss of his mother. As a result of the grandmother's role during a very difficult and emotional time in her grandson's life, the trial court found that substantial harm to the child would occur if the relationship was severed. Furthermore, the trial court found that the grandmother's involvement in her grandson's life was so significant that the child sometimes referred to her as his mother. Third, the trial court found that the visitation was in the child's best interest because of the strong and positive emotional ties between the grandmother and her grandchild. Furthermore, she was the child's only significant connection to his deceased mother and her family.
C. Modification of a Custody and/or Visitation Order: A Material Change in Circumstances and the Child's Best Interest Required
In Saunders v. Saunders, 2008 WL 2052818 (Tenn. Ct. App.), the Court of Appeals affirmed the trial court's decision to deny the paternal grandparents visitation. The paternal grandparents appealed the ruling of the trial court on the grounds that it had previously ordered visitation for them, making the issue res judicata and the order for visitation unalterable.
The trial court held that custody and visitation decisions are res judicata upon the facts in existence or reasonably foreseeable when the decision is made. However, they may be altered if intervening, material changes in the child's circumstances require modification of an existing arrangement.
Here, the trial court initially ordered visitation for the grandparents after it conducted its three-pronged analysis and, in addition, determined that the father was estranged from his parents. However, the trial court later found that a material change, namely that the father was no longer estranged from his parents, had occurred and thus there no longer were grounds for awarding visitation to the paternal grandparents.
While the statute and case law on grandparent visitation can be lengthy and complex, it ensures that the ultimate goal of meeting the child's best interest remains paramount.
- Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
- Id. at 582.
- (1) The father or mother of an unmarried minor child is deceased;
(2) The child's father and 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 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 months or more and was subsequently removed from the home by the parent or parents (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 months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.
- (A) The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that cessation 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 of the relationship presents the danger of other direct and substantial harm to the child.
- (A) The child resided with the grandparent for at least six consecutive months;
(B) The grandparent was a full-time caretaker of the child for a period of not less than six 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 year.
- (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; and
(7) If one parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person.
- Rogers v. Turner, 2008 WL 4613562 (Tenn. Ct. App.).
- Id. at 7.
- Carr v. McMillan, 2008 WL 2078058 (Tenn. Ct. App.).
- Id. at 2.
- Id. at 7.
- Id. at 8.
- Saunders v. Saunders, 2008 WL 2052818 (Tenn. Ct. App.).
- Id. at 3.
MARLENE ESKIND MOSES is the principal and manager of Moses & Townsend PLLC, a family and divorce law firm in Nashville. She is the current president of the American Academy of Matrimonial Lawyers and the Tennessee Supreme Court Historical Society. She has held prior presidencies with the Tennessee Board of Law Examiners and the Lawyers Association for Women. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers and is the current vice president for the National Board of Legal Specialty Certification. The Tennessee Commission on Continuing Legal Education & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist. Moses is a new columnist for the Tennessee Bar Journal.
Co-author JESSICA J. UITTO is an associate at Moses & Townsend PLLC, a family and divorce law firm in Nashville. She also does pro bono work for the family division of the Legal Aid Society in Nashville, and is a member of the Nashville Coalition Against Domestic Violence. Uitto graduated from the University of Pennsylvania with a B.A. in Women’s Studies and a minor in Psychology. In 2008, she graduated from Pepperdine University School of Law with a law degree and a Certificate of Dispute Resolution from the Straus Institute. She is licensed to practice law in Tennessee, Pennsylvania and New Jersey.