In most families, grandparents play a significant role in the lives of grandchildren. I have some great memories spending time with my grandparents growing up in Nashville. I was lucky to have both sets of grandparents until I was well into my twenties. In some families, however, grandparents are at odds with the parents and the relationship between the grandparents and the grandchildren is affected. When this happens, the grandparents may be required to resort to the courts in order to spend time with their grandchildren.
As a general rule, parents have the right to parent their children as they see fit. This includes the right to decide with whom the children will associate. The right to parent one’s children is founded on the right to privacy contained in the United States Constitution. Before the court can abridge that right, it must be shown that the failure to do so would result in severe emotional harm to the children.
In Tennessee, grandparents have a right to visit with their unmarried minor grandchildren, but only if the parents refuse to allow grandparent visitation and that refusal results in severe emotional harm to the children. Any of the following circumstances allow the grandparents to petition the court for grandparent visitation:
The father or mother of the child is deceased
The child's father or mother are divorced, legally separated, or were never married to each other
The child's father or mother has been missing for not less than six months
The court of another state has ordered grandparent visitation
The child lived in the home of the grandparent for a period of twelve months or more and was taken away from the home by the parent or parents
The child and the grandparent maintained a significant existing relationship for a period of twelve months or more immediately before the relationship was ended by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and ending the relationship is likely to cause substantial emotional harm to the child
The first step for the court in considering a grandparent’s petition for visitation is to determine the presence of a danger of substantial harm to the child. The court can find that stopping the grandparent/grandchild relationship will result in substantial harm if any of the following conditions are proven by the grandparent seeking visitation:
The child had such a significant existing relationship with the grandparent that loss of the relationship is likely to cause severe emotional harm to the child
The grandparent functioned as a primary caregiver such that stopping the relationship could interrupt provision of the daily needs of the child and thus cause physical or emotional harm
The child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child
The court will find that a significant relationship exists if it can be proven that the child lived with the grandparent for at least six consecutive months, the grandparent was the full-time caretaker of the child for a period of not less than six consecutive months, or the grandparent had frequent visits with the child for a period of not less than one year.
In all of the situations above, the grandparent seeking visitation must prove their case. In other words, the burden of proof is on the grandparent. A unique situation exists, however, when the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent. In that case, the court presumes that substantial harm to the child will result if the relationship between the child and the grandparent is stopped. This shifts the burden to the parent opposing grandparent visitation to prove that substantial harm would not result if the grandparent/grandchild relationship ended.
Once the court decides that a danger of substantial harm to the child would result if the grandparent/grandchild relationship were to end, the court must then determine whether grandparent visitation would be in the best interests of the child. If the court decides that grandparent visitation would be in the child’s best interest, the court will order visitation.
There are a couple of things to keep in mind in grandparent visitation cases. First, there is no set amount of time the court must give a grandparent for visitation. Second, if the child is adopted by other than a relative or stepparent, there is no right to grandparent visitation. Third, grandparents of an adopted child have grandparent visitation rights. Fourth, step-grandparents have visitation rights. Fifth, great-grandparent also have visitation rights.
The laws regarding grandparent visitation are complicated. If you are considering filing a grandparent visitation case, it is imperative to hire an attorney knowledgeable in the area of grandparent visitation rights.