Grandparent’s Rights in Tennessee
Before Tennessee’s Current Statute
Originally, grandparents had no legally enforceable rights. The parents were thought to have the right to rear their own child without interference, even from grandparents. Parents were presumed to act in the child’s best interest. The Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d (Tenn. 1993), held that unless grandparents could demonstrate that the grandchild was at serious risk of substantial danger of harm from limited or no contact with grandparents, the Tennessee Constitution’s Right of Privacy would be violated by imposing grandparent’s rights. Similarly, in 2000 the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57(2000), struck down a Washington state statute and held that the courts must give deference to fit parents and the parents’ decision as to what the relationship between the grandchild and the grandparents would be.
Tennessee’s New Statute
In response to those decisions the Tennessee Legislature passed an amended statute that now governs grandparent’s rights.
Who is a Grandparent?
By statute, grandparents are:
- The biological grandparents.
- The spouses of biological grandparents.
- The parents of adopted parents.
By caselaw, great-grandparents are considered grandparents as well.
When a Child Has Been Removed From the Parents
When a grandchild has been removed from the parents’ custody (usually by the Department of Children’s Services for abuse or neglect), then grandparents may be considered by the Department for possible custodian, at least on a temporary basis, or the grandparents may petition the court for reasonable visitation. Visitation should be granted if the following conditions are met:
- If the grandparents are not implicated in any child-related crime.
- If visitation is in the child’s best interest.
- If the grandparents would protect the child from the cause of the removal of the child from the parents’ custody.
Grandparents May Petition for Visitation Over the Objection of a Parent or Parents in Specific Circumstances
- If the grandparents are the parents of a deceased parent.
- If the parents are divorced, legally separated, or never married.
- If a court from another state has ordered visitation.
- If a parent is missing for at least six (6) months AND the remaining parent opposes visits.
What if the Parents Do Not Oppose Visitation?
The statute technically requires that the parents actually oppose visitation. The courts, however, do recognize that opposition may occur without totally denying contact if the frequency of the visits and/or the conditions for visits are so restrictive as to be a denial.
What is Proof of Danger of Substantial Harm?
If the child has resided in the home of the grandparent for a year or more, a rebuttable presumption of harm may arise. That means the grandparents do not have to prove that harm will occur in the absence of visitation. The parents may, however, be able to rebut the presumption and prove that there is no likely harm.
If the grandparent and child had a “significant existing relationship” for a year or more, substantial harm is presumptively “likely.”
What is Significant Relationship?
Significant relationship may be found in three (3) circumstances:
- If the child resided with the grandparent for at least six (6) months, that is considered a significant relationship.
- If the grandparent was the full time caregiver for not less than six (6) months for the child, that is considered a significant relationship.
- If the grandparent had frequent visitation with the child for not less than one (1) year, then the relationship is considered significant.
Expert Proof is Not Necessary
The court will apply a standard called the “Reasonable Person” and determine whether a reasonable person would likely suffer severe emotional harm if visitation were not granted or whether a reasonable person would consider the relationship with the grandparent significant. If the court finds a significant relationship exists and there is a likelihood of substantial harm, then the court is free to determine whether visitation with the grandparents would be in the child’s best interest. The general custody factors considered in divorce cases are then applied by the court to determine the child’s best interest. If visitation is also in the child’s best interest, it should be awarded on the terms the court feels best for the child.
What if Your Grandchild is Adopted?
If the adoption is by a relative or a stepparent, then grandparents may still petition for visitation. If, however, the adoption is by others, the rights of the grandparents automatically end.
What Happens if a Parent is on Active Duty of the Military?
If a parent has court ordered visitation or co-parenting time, but has to be on active duty outside of the state for at least ninety (90) days, then that parent may petition the court for a temporary assignment of that parent’s visitation rights to a legal or biological relative including the grandparents. The time permitted for the visitation will not exceed the parent’s time allowed under the court order.
For more information, contact Sobieski, Messer & Associates.