Tennessee Grandparent Visitation Rights Law
When and how may Tennessee grandparents have rights to visit grandchildren over the objection of one or both parents? Tennessee’s grandparent visitation rights statute and law tells us.
Grandparent Visitation Rights Law in Tennessee
Grandparent visitation rights in Tennessee have changed over the last 40 years to match the changing makeup of families. Families may be comprised of biological parents, step-parents, foster parents and adoptive parents. The law changed as the needs of these families changed. The law today covers many of these configurations and also gives the court room to take into account other important factors. Ultimately, final determination is based on protecting the child from danger and doing what’s best for him or her.
No guaranteed rights to grandparents when parents are still married to each other
Grandparent visitations are not guaranteed. The parents of the child have the first say in whether or not the grandparents may see the children. In a Tennessee Supreme Court case from 1993, Hawk v. Hawk, 855 S.W.2d (Tenn. 1993), the Supreme Court ruled that there is a parental right to privacy which limits the courts right to interfere with parents’ decisions regarding their children. In that case, the parents decided to prohibit the father’s parents from visiting the children. The grandparents went to court, using an earlier law from 1971 that guaranteed grandparents visitation rights if these were in the best interests of the child. In Hawk, the court added a new condition. When a couple is married, considered fit by the court and have had continuous custody of their children, the parents have the right to decide about grandparent visitations and the grandparents first must prove that the children would be harmed by the denial of visitation rights. Only then will the court interfere with the parents’ rights to make parental decisions.
In a later case, Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), where the stepfather adopted the child, the court upheld the same standard. The parents cut off visitation between the biological father’s parents and the child. The Supreme Court held that only if there is a finding of harm to the child will the court intervene and determine whether grandparent visitations are in the best interests of the child.
Who is considered a grandparent?
The law gives three very clear definitions of a grandparent, for the purposes of this law only. They are the biological grandparents, the spouse of a biological grandparent, and the parent of an adoptive parent (this would include parents of a stepparent who adopted the child).
When can grandparents claim visitation rights?
According to Tennessee law, Tennessee Code Annotated § 36-6-307 (2012), in certain cases only, grandparents who want visitation rights may request a court hearing if the visitations are being denied by the residential parents. Again, they may not request a hearing in the situation given above, where the parents are still married to each other or where there was a divorce and the stepparent adopted the child.
There are six situations which give grandparents the right to request a hearing. The first three situations relate to the parents themselves. They are cases in which either one parent died, the parents are divorced, separated or never married, or one parent is missing for at least six months.
Two of the situations relate to the grandparents themselves. If the child lived with the grandparents for at least twelve months and was removed by the parent or parents, or if the child had a “significant existing relationship” with the grandparents prior to the relationship being severed by the parents (and there was no abuse or danger to the child by the grandparents) and severing the relationship may cause emotional harm to the child, the grandparents may request a hearing. In two of these situations where the grandchild lived with the grandparents or where one parent is deceased (and the deceased parent’s parents are seeking visitation rights), the court presumes that denying visitation will endanger the child. Finally, if a court in another state granted grandparent visitation rights, the grandparents also have a right to ask for a hearing.
Danger of emotional harm and the child’s best interest
After evidence is brought in the hearing, the court must decide if the child is in danger of substantial harm if the relationship with the grandparents is prohibited. The law says that there is a danger of substantial harm to the child in three cases. The first is a case in which the child had “such a significant existing relationship with the grandparent” that breaking off the relationship is likely to cause the child severe emotional harm. The second case is when the grandparent functioned as the child’s primary caregiver. In such a case, ending the relationship could mean that the child’s daily needs are not being met and therefore the child might be hurt both physically and emotionally. The third case is one in which the child had a significant existing relationship with the grandparent, and ending that relationship may cause “other direct and substantial harm” to the child.
The law also defines a “significant existing relationship.” A significant existing relationship exists between grandparent and child if the child either lived with the grandparent or if the grandparent was the child’s full-time caregiver for at least six consecutive months or if the grandparent had frequent visits with the child for a period of at least one year.
If the court rules that there is no danger to the child if visitation is prohibited, the issue of visitation is left to the parents and the court does not intervene. If, however, the court decides there is a “danger of substantial harm” to the child if grandparent visitations are denied, the court must then decide whether grandparent visitation is in the “best interests of the child.” The law lists ten factors that the court can consider when making this determination of “best interest” but this list is not closed and the court may take many other issues into consideration. The list includes such factors as the length and quality of the relationship between the child and the grandparent, the grandparent’s role in the child’s life, emotional ties between child and grandparent, the child’s preferences (if the child is mature enough), the relationship between the grandparent and the parent and whether or not the grandparent filed the petition in good faith. It also gives consideration to situations of divorce, where a parent’s visitation rights may be affected and cases where one parent is deceased or missing. The court will also take into consideration any finding that a parent is unfit.
Generally, grandparents do not need to bring expert witnesses in order to show that there was a significant relationship with the grandchild or that the loss of the relationship might harm the child. The court has to look at these issues from the perspective of a “reasonable person.”
If the court finds that it is in the best interests of the child to have visits with the grandparents, the court can order reasonable visitation.
Grandparents’ rights when the grandchildren are placed in foster care
Grandparents’ rights are more limited if the child was removed from his parents’ custody and placed in foster care or another child care agency. These are cases in which the home environment was a danger to the child and he was removed in order to protect him. In such cases, the grandparents can ask for reasonable visitation rights if three conditions are met. The first condition is that the visitations are in the best interests of the child. The second condition is that the grandparents adequately protect the child from further abuse and intimidation by the perpetrator or another member of the family. The third condition requires that they have not committed a criminal offense (such as rape, sexual battery, and other violent crimes) against the grandchild or their own children.
The laws above apply even in cases where a relative or stepparent adopts a child. If the child is adopted by somebody other than a relative or stepparent, any visitation rights that existed until then automatically end.
Tennessee’s grandparent law is not perfect. No doubt many grandparents will find the legal requirements overly burdensome and, some might argue, unfair and unjust. Parents, for whatever reason, may abuse their rights and deny a natural, normal relationship between grandparent and grandchild. The law and the courts recognize the possibilities for misuse of the law. The law, and the procedure required by the court, helps to weed out those cases that are harmful for the children and do what is in really in the best interests of the children.
For more about Tennessee’s grandparents’ visitation rights statute, see Tennessee Grandparent Visitation Rights Law in Tennessee Divorce Law. For updates, analysis, and case law summaries, see the Grandparents’ Visitation Rights category on our Tennessee Family Law Blog.