In 2010, the Tennessee legislature added a provision to Tennessee's Grandparent Visitation statute presumably making it easier for grandparents, who are parents of a deceased parent, to obtain visitation. However, according to a recent Tennessee case, grandparents who have been denied visitation by the court prior to the amendment cannot benefit from the new provision under a res judicata theory.
Under Tennessee's Grandparent Visitation statute, Tenn. Code Ann. 36-6-306, grandparents seeking visitation must first show that one of six circumstances exists, found in Tenn. Code Ann. §36-6-306(a). Then the court must determine that 1) substantial harm will occur to the child without grandparent visitation; and 2) that a significant relationship exists between the child and grandparent. Finally the court must do a best interest analysis.
Prior to the 2010 amendment, the grandparent of a deceased parent had to prove substantial harm. The 2010 amendment shifted the burden to the opposing party. The 2010 amendment reads: if the child's parent is deceased and the grandparent seeking visitation is the parent of that deceased parent, there shall be a rebuttable presumption of substantial harm to the child based upon the cessation of the relationship between the child and grandparent.
In Jackson v. Smith, W2011-00914-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2011), the Maternal Grandmother filed a petition for grandparent visitation after her daughter passed away. The trial court denied the Maternal Grandmother's petition because she did not prove substantial harm would occur due to the loss of the relationship between her and the child. After the 2010 amendment went into effect, the maternal grandmother filed a second petition for grandparent visitation. Father filed a motion to dismiss on the ground of res judicata. Res judicata bars parties from bringing a second suit on the same cause of action with respect to the issues that were or could have been litigated in the first suit. The trial court granted the motion to dismiss.
The Maternal Grandmother appealed arguing that res judicata did not apply due to the change in law. The Tennessee Court of Appeals affirmed the trial court decision. Tennessee follows the general rule that res judicata applies despite a change in the law after a final judgment. Therefore the Maternal Grandmother could not benefit from the rebuttable presumption.