Facts: Mother and Father are the married parents of Child.
Eight days after Child’s birth, Mother died unexpectedly from health complications.
After Mother’s death, her parents—Child’s Maternal Grandparents—visited Child at Father’s home every Monday, Thursday, and sometimes on weekends.
Two months later, disputes arose between Father and Maternal Grandparents over when they could visit Child and how to use the proceeds from Mother’s life insurance policy. Because of this, Father stopped all contact between Maternal Grandparents and Child.
The following month, Maternal Grandparents petitioned for grandparent visitation, arguing that Child would suffer substantial harm if she were denied a relationship with the maternal side of her family.
Father moved for summary judgment, arguing there was no danger of substantial harm to Child if Maternal Grandparents were not awarded visitation.
Maternal Grandparents responded by arguing that Tennessee Code Annotated § 36-6-306(b)(4) establishes a rebuttable presumption of substantial harm when the child’s parent is deceased and the grandparent seeking visitation is the parent of that deceased parent. They argued that Father had not rebutted this legal presumption.
The trial court granted summary judgment to Father. There was no evidentiary hearing or bench trial.
Maternal Grandparents appealed.
On Appeal: The Court of Appeals reversed the trial court.
The Court began by quoting the trial court’s recitation of the law:
The [trial] court then stated, “as a condition precedent to grandparent visitation, the Court must find there is a danger of substantial harm to the child in question, and that is based upon three factors.” The three factors identified by the trial court are:
(a) That the child had such a significant existing relationship with the grandparent that loss or severe reduction of that relationship is likely to occasion severe emotional harm to the child;
(b) The grandparent functioned as a primary caregiver such that cessation or severe reduction of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(c) The child had a significant existing relationship with the grandparent and loss or severe reduction of the relationship presents the danger of other direct or substantial harm to the child.
We emphasized the word “is” from the foregoing quote because it reflects the trial court’s erroneous belief that substantial harm must be proven by one or more of the three factors stated above, two of which require the grandparent to prove a significant existing relationship. Indeed, when neither parent is deceased, a finding of substantial harm is to be based upon these factors. However, Tennessee Code Annotated § 36-6-306(b)(4) provides a fourth factor by which the grandparent may establish the condition precedent of substantial harm. That section reads:
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 or severe reduction of the relationship between the child and grandparent.
Tennessee Code Annotated § 36-6-306(b)(4) affords [Maternal Grandparents] the rebuttable presumption that substantial harm will result if visitation with their grandchild is denied without having to prove a “significant relationship” between the grandparents and child. . . . Thus, when the child’s parent is deceased, as is the case here, and [the] petitioner is the parent of that deceased parent, as is the case here, the grandparents need not show the child had a significant relationship with them. Rather, all that needs to be shown is that there was a cessation or severe reduction of the relationship between the child and grandparent.
The statute defines “severe reduction” as “reduction to no contact or token visitation . . . .” [The statute] defines “token visitation” as visitation that, “under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child[.]” Determining whether visitation was “token” requires examination of the frequency, duration, and quality of the visits that occurred, which is a fact-intensive inquiry.
It is undisputed that [Maternal Grandparents are the parents of Child’s mother. Therefore, . . . there exists a rebuttable presumption of substantial harm to Child based upon the cessation or severe reduction of the relationship between Child and Maternal Grandparents. . . . As one court has explained, presumptions “may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.” Because Father did not move for summary judgment based upon the contention that he had successfully rebutted the presumption of substantial harm, we need not consider whether the presumption of substantial harm has “disappeared in the sunshine.”
Because genuine disputes of material facts exist, the Court found Father was not entitled to summary judgment as a matter of law. The trial court’s summary judgment was reversed.
K.O.’s Comment: (1) The Court acknowledges elsewhere in the opinion that “the relationship between a grandparent and an infant grandchild may be different from the relationship between a grandparent and a six-year-old.” This is a familiar issue to the Court of Appeals, which acknowledged in Huffman v. Huffman the “practical impossibility” of proving substantial harm from the cessation of grandparent visitation in a case involving a two-year-old child. Lawyers advising grandparents seeking court-ordered visitation with very young children must keep this consideration in mind.
(2) Congratulations to Felisha White, Esq., on a job well done on this appeal.