In Re Diawn B.; (Tenn.Ct.App., filed 7/23/2018)
TRIAL COURT: This appeal arises from an action for grandparent visitation. The child’s father died when she was seven weeks old, and when the mother denied visitation to the paternal grandmother, the paternal grandmother filed a petition for grandparent visitation. After a trial, the court determined that the mother opposed visitation, the presumption of substantial harm was not overcome, and grandparent visitation was in the child’s best interests. The court ordered grandparent visitation the third weekend of each month, Thanksgiving break in odd years, every Christmas break, and every summer break. The court also gave the grandmother four of the parental rights found in Tenn. Code Ann. § 36-6-101(a)(3)(B)—the right to educational records, the right to be free from derogatory remarks, the right to be notified of medical emergencies, and the right to be notified of extracurricular activities and the opportunity to participate in or observe them. The mother appealed and the Court of Appeals reversed the trial court.
COURT OF APPEALS: “[P]arental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution,” and under the Fifth and Fourteenth Amendments to the United States Constitution. Under both the state and federal constitutions, parents have the freedom to make decisions regarding the care and custody of their children without state interference. For a state to intervene in the parent-child relationship, the Tennessee Constitution requires a compelling justification. Accordingly, Tenn. Code Ann. § 36- 6-306(b)(1) provides that a court must first determine that “cessation or severe reduction of the relationship” between a grandparent and child will cause the child “substantial harm” before ordering visitation against a parent’s wishes.
Once harm is established and the court determines that visitation is in the child’s best interest, as the trial court did here, the court is tasked with creating a visitation plan
that advances the state’s compelling interest in minimizing harm to the child. See Tenn. Code Ann. § 36-6-306(c). However, because parental rights are fundamental rights, the plan must be narrowly tailored to achieve the state’s objective. Therefore, a “reasonable” grandparent visitation plan is one that is “carefully crafted both to afford grandparents the visitation necessary to avoid substantial harm to the child and to minimize, to the extent possible, interference with the parent-child relationship.” The level of visitation necessary to minimize harm is dependent on the unique facts of each case.
One of the more significant legal principles to recognize before crafting grandparent visitation is that Grandmother does not stand in Father’s shoes in her action for grandparent visitation. A fit parent and a grandparent “do not begin on equal footing.” One relies on a fundamental constitutional right, and the other does not. Consequently, “the trial court may not ‘start with the standard for an action between a child’s parents as the baseline and tweak it . . . for . . . grandparent visitation.’”
The grandparent visitation plan at issue in this appeal is so extensive that it impermissibly interferes with Mother’s fundamental constitutional rights because it is not narrowly tailored to achieve the state’s objective. Moreover, it is more extensive than is reasonably necessary “to afford grandparents the visitation necessary to avoid substantial harm to the child and to minimize, to the extent possible, interference with the parent-child relationship.” Therefore, the trial court exceeded its discretion by crafting a grandparent visitation schedule that is in conflict with Tenn. Code Ann. § 36-6-306 and constitutional restraints. As a consequence, we vacate and remand for the trial court to create a narrowly tailored visitation schedule that affords Grandmother reasonable visitation to avoid substantial harm to Diawn while minimizing interference with Mother’s rights.
The grandparent visitation schedule was vacated in its entirety and remanded for the trial court to create a narrowly tailored visitation schedule. The Court of Appeals wrote that until the trial court establishes a new schedule, grandmother’s visitation would be limited to the third full weekend of every month from 9:00 a.m. on Saturday to 4:00 p.m. on Sunday. It will be interesting to see if the trial court adopts the third weekend of every month as the new more narrowly tailored schedule.
The Court of Appeals further held that the Tennessee Parental Bill of Rights do not apply to grandparents.