When there’s a custody battle over your grandchild, what are your rights as a grandparent? Perhaps your grandchild has been restricted or prohibited from seeing his/her mother or father (your son or daughter). Do you still have rights to spend time with your grandchild?
First and foremost, you should understand that in a custody situation, the child’s parents, not grandparents, have superior parental rights in the care and custody of their child. In the event of a divorce or separation, Tennessee laws will always look to the child’s biological or adopted parents for custody first.
When parents are deemed as “fit” parents, and are given custody of their child, the law assumes that their parenting decisions are in the best interest of the child. So, if the parent gives consent for the grandparents to see the child during their time of custody, the law does not interfere.
If one – or both – of the child’s parents object to the grandparent visiting with the child, the grandparent has a right to file a petition for visitation in Tennessee. However, this can be an uphill battle, so be sure to seek legal counsel before you decide on a course of action.
When grandparents choose to seek visitation, they should have a plan and submit it to court for review. If the parents do not oppose the visitation plan, the court may order visitation for the grandparents. In Tennessee, the court’s power to grant visitation rights to grandparents over a parent’s objection is very limited.
If one or both of the parents object to the grandparent’s proposed plan, the court will only grant a visitation hearing to the grandparent(s) if one of the following is true:
- one of the child’s parents is deceased
- one of the child’s parents is currently missing, and has been missing for over 6 months
- the child’s parents are not married or, if they were once married, are now divorced or legally separated
- the grandparent already has a visitation order from another state granting visitation with the child
- the child has lived with the grandparent(s) for at least one year before being removed from the grandparent’s home by the parent(s). If this is the situation, Tennessee law provides a rebuttable presumption that the child would be harmed if they were denied grandparent visitation.
- the child has maintained a “significant existing relationship” with the grandparent(s) for at least 12 months before the parent(s) put a stop to access (assuming there was no harm or abuse to the child involved.
Finally, Tennessee courts should always consider the best interest of the child. We’ll look at T.C.A. § 36-6-307 outlines 11 factors that the court will consider before granting visitation to a grandparent.
(1) The length and quality of the prior relationship between the child and the grandparent and the role performed by the grandparent;
(2) The existing emotional ties of the child to the grandparent;
(3) The preference of the child if the child is determined to be of sufficient maturity to express a preference;
(4) The effect of hostility between the grandparent and the parent of the child manifested before the child, and the willingness of the grandparent, except in case of abuse, to encourage a close relationship between the child and the parent or parents, or guardian or guardians of the child;
(5) The good faith of the grandparent in filing the petition;
(6) If the parents are divorced or separated, the time-sharing arrangement that exists between the parents with respect to the child; and
(7) If one (1) parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person.
(8) Any unreasonable deprivation of the grandparent’s opportunity to visit with the child by the child’s parents or guardian, including denying visitation of the minor child to the grandparent for a period exceeding ninety (90) days;
(9) Whether the grandparent is seeking to maintain a significant existing relationship with the child;
(10) Whether awarding grandparent visitation would interfere with the parent-child relationship; and
(11) Any court finding that the child’s parent or guardian is unfit.
If you think one or both of the parents are unfit to raise the child and you seek full or joint custody of the child, that is an entirely different matter than visitation only. We’ll discuss that in our next article. In the meantime, if you have questions about your rights as a grandparent, give Flexer Law a call at 615-255-2893 for a free consultation.