Over the River and Through the Woods, to Grandmother’s House We Go?

Ashley E. Geno

December 17, 2014

"Over the river and through the woods, to grandmother's house we go... ."  It's a song that evokes memories of my childhood spent travelling through snow to get to my grandparent's house for Christmas celebrations.  However, what happens when one parent is out of the picture and the other set of grandparents want to spend some time with their children.  Fortunately, in some instances Tennessee does allow grandparents some rights in this sort of situation.  Unfortunately, those rights have some limitations.

By way of limitation, as a general rule, parents typically have the right to supervise their minor children and this right stands superior to everyone else, including grandparents.  As part of that supervision, parents get to choose who may and may not spend time with those children.  In a case where a married couple whose fitness as parents is unchallenged and there is not a substantial harm threatening the child’s welfare, the state doesn’t have a sufficiently compelling justification for infringing on the right of the parents to raise their children as they see fit.  See Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).  This means that if parents whose fitness is unchallenged do not wish for a particular person to be around their children, the parents can limit or prevent such person’s interactions with the child or children. 

            Now for the good news for grandparents, this general rule gets tricky when the person the parents want to limit or prevent interaction with is the children’s grandparents.  In  specific situations, Tennessee law allows grandparents to sue parents for court-ordered visitation with a minor child.  To determine whether the grandparents have a right to court-enforced visitation, Tennessee law dictates grandparent visitation must be opposed by the parents and 1) one or both of the child’s parents are deceased; 2) the child’s parents are divorced, legally separated, or were never married; 3) one of the child’s parents have been missing for at least six months; 4) another state with jurisdiction has ordered grandparent visitation; 5) the child lived with the grandparents for at least twelve months and was then removed by the parent(s); or 6) the relationship between the child and grandparent was a significant existing relationship that was severed by the parent for a reason other than abuse of danger to the child and that by severing the relationship, the child will suffer substantial harm.  T.C.A. § 36-6-306. 

           One of the more curious issues arises in the context of the requirement that the parent oppose visitation.  If the visitation is not opposed by the parent, the court has no jurisdiction to set a visitation schedule for the grandparent.  See T.C.A. § 36-6-306. As a matter of course, you would expect that if the visitation was not opposed, it would not be opposed because the grandparents would be getting the visitation.  However, proving that this provision has more bite than bark, the Tennessee Court of Appeals affirmed the dismissal of a petition for grandparent visitation.

          In In re Landon R.W., the maternal grandparents of the child sued the mother of the child for grandparent visitation after the mother removed the child from the grandparents’ home. See In re Landon R.W., 28 TFLL 9-13, Tenn. Ct. App., M.S., May 2, 2014. As part of the petition, the grandparents alleged the mother only allowed them brief visitation with child.  See id. The Court, however, dismissed the petition because the grandparents couldn’t prove the mother opposed them spending time with the child.  See id.  In making its decision, the Court noted that in a petition for grandparents’ rights, the grandparents have the burden of proving their petition and, as part of that burden, must prove the parent(s) oppose the visitation.  See id.  If there is no parental opposition, the petition must be dismissed.

          While grandparents do have some rights and do have the right for court ordered visitation, those rights have very specific requirements.  Because of these very strict requirements, it is best to go through these issues with an experienced family law attorney.  Tennessee does enforce grandparent rights, but the bottom line is that those rights are enforced only if the strict language of the statute is followed.