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New Standard for Modifying or Terminating Grandparent Visitation in Tennessee

September 12, 2013 by The McKellar Law Firm, PLLC

Grandparent's rights have always been a gray area of family law in Tennessee. However, on September 6, 2013, the Tennessee Supreme Court made a unanimous ruling that may clear up some of the confusion.

It has always been the standard that parents have "superior parental rights" in initial proceedings to determine if grandparent's visitation rights are appropriate. In order to overcome this, a grandparent must prove to the court that if the parent(s) oppose the visitation, that the child will "suffer substantial harm" if visitation with the grandparent is denied, and the visitation is in the best interest of the child. The new ruling set a precedent that while parents enjoy these "superior parental rights" in the initial proceedings for grandparent visitation, they do not carry over to subsequent proceedings to modify or terminate grandparents' visitation rights.

In the case at bar, Neal Lovlace et al. v. Timothy Kevin Copley (Tenn. Sept. 6, 2013) the grandparents were given court-ordered visitation with their grandchild. Soon after the order was entered, tension between the parents and grandparents grew to the point that the grandparents petitioned the court for more time with the child. In response, the parents asked the trial court to terminate the grandparents' visitation altogether. The trial court refused to terminate the visitation, but also refused to extend any more time with the children to the grandparents. It was reasoned that the deterioration of the relationship between the parents and grandparents amounted to a "material change in circumstances." It was further found that the best interest of the child would be best served by minor changes to the visitation arrangement. This decision was appealed, and the Court of Appeals reversed the trial court's judgment citing the parents' "superior parental rights" were not properly weighed in the case. The decision was again appealed to the Supreme Court which ruled the trial court made the right assessment and reinstated its judgment.

The impact of this judgment will be known in the coming months, but it is safe to assume that parents can no longer rely solely on their role as a parent in regards to termination or modification of grandparents' visitation rights. Parents and grandparents will now be on equal footing when attempting these types of modifications or terminations.

Grandparents Previously Denied Visitation May Not Benefit from New Change in the Law

September 16, 2011 by The McKellar Law Firm, PLLC

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. ยง36-6-306(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.