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Two Tennessee Grandparent Visitation Cases

In Cupples v. Holmes (Tenn. Ct. App. 3/31/2022), a child’s maternal grandparents alleged they had significant visitation with their grandchild until the mother was admitted to an inpatient rehabilitation facility due to use of illegal drugs. After the father was awarded custody, he prevented the grandparents from visiting. The case was heard without a jury and reviewed de novo on appeal.

T.C.A. § 36-6-306 authorizes a court to award grandparent visitation. However,

“decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal and state constitutions, explicitly prohibit any judicial assumption that grandparent/grandchild relationships always benefit the child, as contrary to the parent’s fundamental right to raise their children as they see fit. See Troxel v. Granville, 530 U.S. 57, 66-72, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (recognizing parents’ fundamental constitutional right to make decisions on care, custody and control of children, finding trial court erred in presuming grandparent visits are in best interest of children); Hawk v. Hawk, 855 S.W.2d 573, 577-82 (Tenn. 1993) (recognizing parents’ fundamental constitutional right, finding trial court engaged in “sentimental” commentary on grandparents and erred in “unquestioning judicial assumption” that grandparent-grandchild relationship always benefits child, basing award of grandparent visitation on that presumed benefit). To avoid such an assumption, the Tennessee constitution and Tennessee’s grandparent visitation statute require a grandparent seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Hawk, 855 S.W.2d at 581; T.C.A. § 36-6-306(b)(1).”

The trial court entered lengthy findings and conclusions, ruling that the child would likely experience severe emotional harm if she was unable to visit with her grandparents. Accordingly, the trial court found that the grandparents met their burden of showing substantial harm to the child if visitation was denied and the Court of Appeals, agreeing, affirmed that decision.

In In re Gracelyn (Tenn. Ct. App. 4/4/2022), a grandfather sought visitation after his daughter and two grandchildren moved out of his home. His petition was denied because he failed to show a lack of visitation posed a risk of substantial harm to the grandchildren.

To obtain court-ordered visitation with a grandchild, a grandparent must prove—as a threshold matter—“that the child will be in danger of substantial harm if visitation is not ordered.” McGarity v. Jerrolds, 429 S.W.3d 562, 570 (Tenn. Ct. App. 2013) (citing Hawk v. Hawk, 855 S.W.2d 573, 581 (Tenn. 1993); Tenn. Code Ann. § 36-6-306(b)(1)). This is because parents have a fundamental right to raise their children as they see fit. See Troxel v. Granville, 530 U.S. 57, 65 (2000) (recognizing that the U.S. Constitution gives parents the right to make decisions on the care, custody, and control of a child). “Absent  substantial harm to the child, a trial court lacks a sufficiently compelling justification for interfering with the parents’ privacy rights by ordering grandparent visitation.” Coleman v. Olson, 551 S.W.3d 686, 698 (Tenn. 2018).

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