When a parent dies, can Tennessee let the surviving grandparents skip part of the proof in a grandparent-visitation case?

Plain-English summary

Tennessee's grandparent visitation statute (Tenn. Code Ann. § 36-6-306) lets grandparents petition for visitation with their grandchildren over the objection of a parent in certain circumstances, including when one parent of the child has died. Before a court can grant visitation over the parent's objection, the Tennessee Supreme Court has held the grandparent must show a "substantial threat of harm" to the child from losing the grandparent relationship. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), is the foundational case; Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), reaffirmed it. The substantial-harm requirement is rooted in the constitutional protection of parents' fundamental right to direct the care, custody, and control of their children. A court cannot just decide that visitation would be "in the best interests of the child"; it has to find substantial harm from the lack of visitation.

SB 3036/HB 2700 (2010) proposed to add a new subsection (b)(4) to § 36-6-306 creating a rebuttable presumption: when the child's parent is deceased and the grandparent is the parent of the deceased parent, there is a rebuttable presumption of substantial harm to the child from cessation of the grandparent-child relationship. Senators Haynes and Faulk asked whether that presumption was constitutional.

The AG concluded yes. The reasoning, which builds on the AG's earlier 2000 opinion (Op. Tenn. Att'y Gen. No. 00-982, addressing a substantially similar 2000 proposal), is that the proposed law does not eliminate the constitutional substantial-harm finding. It merely changes the evidentiary mechanics. The court still has to determine whether there is a substantial threat of harm; the presumption just shifts the burden of going forward to the parent who would otherwise prevail by default. If the parent comes forward with evidence rebutting the presumption (showing, for example, that the grandparent never had a significant relationship with the child, or that ending the relationship will not cause substantial harm), the court does what it always did: weighs the evidence and decides whether substantial harm has been established.

The structural reason this passes muster: Hawk v. Hawk requires an initial finding of substantial harm. It does not specify the evidentiary mechanism by which that finding is reached. The legislature can change the procedural burden of going forward (rebuttable presumption) without changing the substantive requirement (substantial-harm finding by the court). The presumption is just a tilt in the procedural battleground, not a constitutional shortcut.

The AG noted the office was "unaware of any subsequently-issued authority that would supersede our 2000 opinion." That is, between 2000 and 2010, no Tennessee Supreme Court decision had cast doubt on the use of rebuttable presumptions in this area. The AG concluded the bill, if enacted, would not be found unconstitutional.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee's grandparent visitation statute has been amended at several points since 2010. The Tennessee Supreme Court has continued to develop the doctrine, and Lovlace v. Copley, 418 S.W.3d 1 (Tenn. 2013), provides important post-2010 guidance on grandparent visitation. The federal substantive-due-process backdrop has also developed since Troxel v. Granville, 530 U.S. 57 (2000). Anyone advising on a current Tennessee grandparent-visitation matter should check the current statutory text, current Tennessee case law, and the current federal substantive-due-process framework.

Common questions

Q: What is the Tennessee grandparent visitation statute?
A: Tenn. Code Ann. § 36-6-306. It gives grandparents standing to seek court-ordered visitation with their grandchildren over a parent's objection in certain enumerated circumstances, including when a parent has died, when the grandchild has lived with the grandparent for at least six months, or in other specific situations.

Q: What is the "substantial harm" requirement?
A: A constitutional safeguard. Before a court can override a fit parent's decision about who their child sees, the court has to find that denying the grandparent-child relationship would cause substantial harm to the child. This requirement comes from the Tennessee Supreme Court's decisions in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), and Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995). It is rooted in the parent's fundamental right to direct the care, custody, and control of their children.

Q: What does the proposed SB 3036/HB 2700 add?
A: A rebuttable presumption. When one of the child's parents has died and the surviving parent has terminated the child's relationship with the deceased parent's parents (the grandparents), the proposed subsection (b)(4) would treat the cessation as presumptively causing substantial harm. The presumption is rebuttable: the parent can introduce evidence to overcome it.

Q: Why would the legislature create a presumption like this?
A: Because in the death-of-a-parent context, the grandparent-child relationship often takes on heightened importance for the child as a connection to the deceased parent. The legislature wanted to give grandparents a procedural boost in those specific cases, recognizing that the child has already experienced one major loss (a parent's death) and is at risk of experiencing another (severance of the grandparent connection).

Q: How does a presumption affect the court's analysis?
A: It shifts the burden of going forward. Without the presumption, the grandparent has to prove substantial harm by some quantum of evidence (typically a preponderance). With the presumption, the grandparent gets the substantial-harm finding by default unless the parent introduces evidence to overcome it. The court then weighs the evidence and decides whether the presumption has been rebutted.

Q: Why is shifting the burden not an unconstitutional shortcut?
A: Because the constitutional requirement is a court finding of substantial harm, not a particular evidentiary process for reaching that finding. The Tennessee Supreme Court in Hawk required the substantive determination; it did not prescribe the procedural mechanics. The legislature has authority to adjust burdens of proof and persuasion, as long as the court still makes the constitutionally-required finding.

Q: When does a grandparent have a "significant existing relationship" with the child?
A: Under § 36-6-306(b)(2), if the child resided with the grandparent for at least six consecutive months, if the grandparent was a full-time caretaker for at least six consecutive months, or if the grandparent visited frequently for at least a year. Under § 36-6-306(b)(3), a grandparent does not need expert proof; the court considers whether the facts would lead a reasonable person to believe such a relationship existed.

Q: Does this opinion change the substantive law of grandparent visitation?
A: No. The opinion is about constitutionality, not policy. It says the legislature can constitutionally enact the presumption. Whether the legislature should is a separate policy question.

Background and statutory framework

The grandparent-visitation statute (2010 version). Tenn. Code Ann. § 36-6-306 has the following structure:

• Subsection (a): Standing. Grandparents have standing to seek visitation in enumerated circumstances, including when one parent of the child is deceased (§ 36-6-306(a)(1)).

• Subsection (b): Substantial-harm finding. Before granting visitation, the court must first determine that cessation of the grandparent-child relationship "constitutes a substantial threat of harm to the child."

  • Three illustrative situations (§ 36-6-306(b)(1)-(3)): (i) the relationship is so significant that its loss will likely cause severe emotional harm; (ii) the grandparent's role as primary caregiver could be disrupted causing physical or emotional harm; (iii) loss of the significant existing relationship presents danger of other direct and substantial harm.

  • Significant existing relationship test (§ 36-6-306(b)(2)): six consecutive months of residence with grandparent; six months as full-time caretaker; or frequent visitation for at least a year.

  • No expert-proof requirement (§ 36-6-306(b)(3)): court considers facts under the reasonable-person standard.

The proposed addition (SB 3036 § 1). The bill would add subsection (b)(4):

For the purposes of this section, 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.

The constitutional framework. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), is the foundational Tennessee case. It held that before a grandparent can interfere with a parent's fundamental right to custody and control of the child, the grandparent must establish a substantial threat of harm to the child from the parent's decision to deny grandparent visitation. Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), reaffirmed the principle.

For broader context (the opinion itself does not cite it), the U.S. Supreme Court's later decision in Troxel v. Granville, 530 U.S. 57 (2000), held that the Washington grandparent-visitation statute as applied was an unconstitutional infringement on the mother's fundamental right to direct her children's upbringing. Troxel did not foreclose all grandparent-visitation statutes, but it did require a more demanding standard than mere best interests of the child. Tennessee's substantial-harm requirement predates Troxel and sits in the same fundamental-rights tradition.

The 2000 AG opinion. Op. Tenn. Att'y Gen. No. 00-982 (May 2, 2000) addressed a substantially similar proposal that would have created rebuttable presumptions of substantial harm in four enumerated circumstances, including death of a parent. The 2000 opinion concluded the proposal was constitutional because it preserved the Hawk-required substantial-harm finding and merely created an evidentiary tilt within that finding.

The 2010 opinion's reasoning. The AG simply applied the 2000 analysis to the 2010 bill. The bill's mechanics are the same. The constitutional question is the same. No intervening case law has changed the answer. Therefore, the bill is constitutional.

The 2010 opinion does not address one important secondary question: whether the presumption, even though formally rebuttable, would in practice be so difficult to overcome that it effectively becomes irrebuttable. That kind of practical critique might be raised in litigation. But on the face of the statute, the presumption is rebuttable, and that is enough to satisfy Hawk.

Citations and references

Statutes:

• Tenn. Code Ann. § 36-6-306(a) (grandparent visitation standing)
• Tenn. Code Ann. § 36-6-306(a)(1) (deceased parent triggers standing)
• Tenn. Code Ann. § 36-6-306(b) (substantial-harm finding)
• Tenn. Code Ann. § 36-6-306(b)(1)-(3) (situations posing significant harm)
• Tenn. Code Ann. § 36-6-306(b)(2) (significant existing relationship)
• Tenn. Code Ann. § 36-6-306(b)(3) (no expert proof required)

Cases:

• Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993)
• Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995)

Related Tennessee AG opinions:

• Op. Tenn. Att'y Gen. No. 00-982 (May 2, 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-062.pdf

Original opinion text

May 5, 2010

Opinion No. 10-62

Constitutionality of Amendment to Grandparent Visitation Statute

QUESTION

Is language in Senate Bill 3036/House Bill 2700 (2010) (collectively "SB 3036") constitutionally valid insofar as it proposes to create a rebuttable threat of harm to a child when one of the child's parents has died and the surviving parent has terminated the relationship between the child and the parent or parents of the deceased parent?

OPINION

Yes, because, as we have previously opined as to similar legislation, the statute preserves the constitutionally-required initial finding of a substantial threat of harm to the child from the termination of the child's relationship with a grandparent, merely erecting a rebuttable presumption that the termination of the relationship constitutes such a threat of harm.

ANALYSIS

Your question concerns Tennessee's grandparent visitation rights statute. As currently constituted, the statute provides standing to grandparents in certain circumstances to petition for visitation with their minor unmarried grandchildren over the objection of a parent. Tenn. Code Ann. § 36-6-306(a). For example, the statute provides standing to grandparents to seek visitation when either the father or the mother of a child is deceased. Tenn. Code Ann. § 36-6-306(a)(1).

In considering the grandparent visitation petition, a court must first determine whether cessation of visitation between a grandparent and grandchild constitutes a substantial threat of harm to the child. Tenn. Code Ann. § 36-6-306(b). The statute lists three situations in which the cessation of the child's relationship with the grandparent may pose a threat of significant harm to the child. Tenn. Code Ann. § 36-6-306(b)(1) through (3). The court may find a substantial threat of harm to the child if the child's relationship with the grandparent is so significant that its loss will likely occasion severe emotional harm to the child, if the cessation of the grandparent's role as primary caregiver to the child could disrupt provision of the child's daily needs and thus cause physical or emotional harm, or if loss of the child's significant existing relationship with the grandparent presents the danger of other direct and substantial harm to the child. Id. The statute provides that a grandparent shall be deemed to have a significant existing relationship with the child if the child resided with the grandparent for at least six consecutive months, if the grandparent was a full-time caretaker of the child for at least six consecutive months, or the grandparent visited frequently with the child for at least a year. Tenn. Code Ann. § 36-6-306(b)(2). A grandparent is not required to present expert proof of a significant existing relationship; instead a court must simply consider whether the facts of a particular case would lead a reasonable person to believe that there is such a relationship or that the loss of the relationship would likely cause the child severe emotional harm. Tenn. Code Ann. § 35-6-306(b)(3).

The proposed legislation prompting your question would add a new subsection (b)(4) to the statute to provide, in full:

For the purposes of this section, 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.

SB 3036 § 1. We have previously opined in favor of the constitutionality of similar proposed legislation that would have created a rebuttable presumption of substantial harm in four instances, including when the father or mother of an unmarried minor child is deceased. Op. Tenn. Att'y Gen. No. 00-982 (May 2, 2000) (copy attached). We noted that the Tennessee Supreme Court has held that before a grandparent may interfere with a parent's fundamental right to custody and control of his or her child, the grandparent must establish the existence of a substantial threat of harm to the child from a parent's decision to prevent the grandparent from visiting the child. Id. (citing Hawk v. Hawk, 855 S.W.2d 573, 577, 579-80 (Tenn. 1993), and Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995)). We observed that the legislation satisfied Hawk's precondition of an initial finding of a substantial threat of harm, writing, "The legislation requires a court of competent jurisdiction to first determine the presence of a danger of substantial harm to the child and merely establishes a rebuttable presumption with respect to the issue of substantial harm to the child in four instances." Id.

We are unaware of any subsequently-issued authority that would supersede our 2000 opinion. Accordingly, we do not believe that a court would find SB 3036 unconstitutional should the legislation be enacted.

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

DOUGLAS EARL DIMOND
Senior Counsel

Requested by:

The Honorable Joe M. Haynes
State Senator
G-19 War Memorial Building
Nashville, TN 37243-0220

The Honorable Mike Faulk
State Senator
11A Legislative Place
Nashville, TN 37243