Another area of the law that I have a great deal of experience is the area of grandparent visitation. This area of law was unsettled in the 90′s and early 2000′s based on numerous constitutional challenges. However, the last decade has seen this area become much more certain.
Grandparent visitation rights are purely granted by statute. As these rights impose on the natural rights of the biological parents, such rights must be granted only in cases of a limited nature as set forth by the state legislature at T.C.A. Sec. 36-6-306.
First and foremost, the correct jurisdiction for filing an action seeking grandparent visitation is either the circuit or chancery court (or general sessions or juvenile court in limited circumstances) of the county in which the minor child(ren) resides.
Next, the court can only entertain such an action if the parent(s) of the child(ren) actually opposes visitation by the grandparent. if the parents do not oppose such visitation, the case will be dismissed. If the parent(s) do oppose visitation, then the grandparents at least get a hearing.
Circumstances that require a hearing:
- either parent is deceased;
- parents are divorced, legally separated or were never married;
- either parent has been missing for at least 6 months;
- the court of another state has ordered grandparent visitation;
- the child(ren) resided in the home of the grandparent(s) for 1 year or more and was subsequently removed from the home by the parent(s); or
- the child(ren) and the grandparent(s) maintained a significant relationship for 1 year or more immediately before the severance of the relationship by the parent(s) and severance is likely to cause substantial emotional harm to the child(ren).
The court must first determine whether there is a presence of substantial harm to the child(ren) if visitation is not allowed by the parent(s). Substantial harm must be proved by showing that:
- the child(ren) had significant relationships with the grandparent(s) such that the loss of that relationship is likely to cause severe emotional harm; or
- the grandparent(s) function as a primary caregiver such that loss of the relationship could interrupt the child(ren)s daily needs causing physical or emotional harm; or
- significant relationship and loss of that relationship presents a danger of other direct and substantial harm to the child(ren).
- child(ren) resided with the grandparent(s) at least 6 consecutive months;
- the grandparent was the full-time caretaker for at least 6 consecutive months; or
- the grandparent(s) had frequent visitation with the child(ren) for 1 year.
While expert witnesses may be used to prove or disprove the existence of a significant relationship or that the lack of visitation will cause severe emotional harm to the child(ren), it is not required.
There are some important presumptions in the statute that must not be overlooked. Rather than discussing them in this blog, please be sure to discuss them with an attorney.
If the court finds that there is no danger of substantial harm to the child(ren), then the case will be dismissed. If the court does find a danger of substantial harm to the child(ren), then the court must next analyze the best interests of the child(ren) based upon the factors listed in T.C.A. Sec. 36-6-307. If the factors weigh in favor of visitation, then the court may order it.
It should further be noted that in cases of stepparent or relative adoptions, grandparent visitation rights survive the adoption. In all other adoptions, grandparent visitation rights are severed at the time of the adoption.
Finally, the term grandparent includes all biological grandparents, the spouse of a biological grandparent and a parent of an adoptive parent.