Tennessee Grandparent Visitation Rights Law in Tennessee Divorce Law
Tennessee grandparent visitation rights law & Tennessee divorce law by Memphis divorce attorney and family law attorney Miles Mason, Sr.
The Tennessee legislature has enacted states which enable grandparents to seek visitation rights with their grandchildren in particular situations. T.C.A. § 36-6-306 (a) allows grandparents requesting visitation to receive a trial when: (1) the father or mother of an unmarried minor 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 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 grandparents 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.
T.C.A. § 36-6-306 (b) (1) sets out that 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 statute lists three factors to examine when determining the existence of substantial harm: (A) whether the child has had such a significant existing relationship with the grandparent that the loss of that relationship would likely cause severe emotional harm to the child; (B) whether the grandparent served as the child’s primary caretaker and that the cessation of the relationship would interrupt the child’s daily need and therefore bring about physical or emotional harm to the child and (C) the child had a significant existing relationship with the grandparent and the loss of the relationship presents the danger of other direct and substantial harm to the child. In order to determine whether the aforementioned conditions are satisfied, the court must determine whether the relationship between the grandparent and the grandchild is significant. T.C.A § 36-6-306 (b) (2) states that a relationship is deemed to be significant if: (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 no less than six months; or (C) the grandparent had frequent visitation with the child who is the subject of the suit for no less than one year.
If the court finds that the danger of substantial harm exists, the court must then decide whether the grandparent visitation would be in the child’s best interest. T.C.A. § 36-6-307 lists the pertinent elements to the best interest analysis. The court should consider: (1) the length and quality of the prior relationship between the child and the grandparent and the role the grandparent played in the child’s life; (2) the existing emotional ties of the child to the grandparent; (3) the preference of the child if the child is determined to be sufficiently mature to express a preference; (4) the effect of the hostility between the grandparent and the parent of the child manifested before the child, and the willingness of the grandparent, except in the case of abuse, to encourage a close relationship between the child and the parent or parents, or the guardian or guardians of the child; (5) the good faith of the grandparent filing the petition; (6) if the parents are divorced of separated, the time-sharing arrangements that exist between the parents with respect to the child; and (7) if one parent is deceased or missing, the fact that the grandparents requesting the visitation are the parents of the deceased or missing person.
The Tennessee courts have held that the court’s power to grant grandparent visitation over parental objection only exists where the family unit is not intact. If the family is intact and has not subjected itself to the court’s discretion, the court may not interfere and award visitation to the grandparent over the parent’s opposition. This limitation was demonstrated in the case of Hawk v. Hawk. The parents in Hawk objected to the grandparent visitation statute when the court awarded visitation to the grandparents over the parent’s objection. The Tennessee Supreme Court ruled that the statute was unconstitutional when applied to married, satisfactory parents who chose to prevent their children from visiting with their grandparents. The court reasoned that it was an invasion of the parent’s privacy to interfere in their child-raising techniques where there was no evidence of harm to the children.