By Sharon Frankenberg,
Attorney at Law

The issue of grandparents’ visitation rights has been addressed by the United States Supreme Court in the case of Troxel v. Granville, 530 U.S. 57 (2000). In that case, an unmarried couple had two daughters. The couple’s relationship ended in 1991 and the father committed suicide in 1993. Until the father’s suicide, his parents had regularly seen the granddaughters on weekends. After the father’s suicide, the mother informed the grandparents that their visitation time would be reduced to one short visit per month. The grandparents sued for the right to visit their granddaughters under a specific state law in Washington which permits “any person” to petition for visitation rights “at any time” and authorizes the courts to grant such rights where it serves the child’s best interests. The mother opposed the amount of time sought by the grandparents. The trial court disagreed with the mother and ordered more visitation with the grandparents. The Washington state appellate courts found the state law unconstitutionally interfered with parents’ rights to rear their children and denied the grandparents petition for visitation rights. The grandparents appealed to the United States Supreme Court.

With 6 votes for the mother (Granville) and 3 votes against, the United States Supreme Court held that the Washington statute unconstitutionally infringes on parents’ fundamental right to rear their children. The Court gave great weight to the fact that the Washington statute was “breathtakingly broad.” There was no limitation in the statute that the parent be found unfit. Nor did the statute require that the court accord any deference to the parent’s decision that visitation would not be in the child’s best interests. Justice O’Connor wrote “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

With this in mind, the Tennessee legislature has enacted law permitting grandparents rights to visitation in certain circumstances. Under Tennessee Code Annotated §36-6-306, grandparents may petition the juvenile court or the court with domestic relations jurisdiction for visitation. Under this statute “grandparent” includes a biological grandparent, the spouse of a biological grandparent and the parent of an adoptive parent. The court may consider granting a petition for grandparents’ visitation over the objection of a custodial parent where there has been a significant existing relationship between grandparent and grandchild. Where the grandchild has lived with the grandparent, where the grandparent had frequent visitation with the grandchild and where the grandparent has been the primary caregiver are all situations contemplated by the statute. If the court finds a danger of substantial harm to the child based upon the cessation of the relationship between the child and grandparent, the court then must determine whether the visitation would be in the best interests of the child. Factors to be considered by the court include the length and quality of the prior relationship between the child and grandparent; the child’s preference if the child is of sufficient maturity; the effect of hostility between the grandparent and parent on the child; and any finding that the child’s parent or guardian is unfit. State law here attempts to balance the constitutionally protected rights of parents to raise their child as they see fit with the child’s right to safety and security, both physically and emotionally.