Randall W. Morrison, Attorney

Natural parents are said to have “superior rights” to all other persons in regards to custody of their minor children. However, those “superior rights’ can be overcome in certain cases or even waived by the natural parents. The “superior rights” can be waived if custody is given to the grandparents voluntarily or lost, as in contested cases where it can be shown that the grandchildren will suffer substantial harm if left in the custody of the natural parents. This substantial harm to the grandchildren however, must be evidenced by real proof and not based upon conjecture or mere possibilities of harm However, once custody is vested to the grandparents the parents may find that regaining custody later will not be a simple task. If the natural parents attempt to regain custody at some point in the future, they must show a material change of circumstance that would require the children to be removed from the grandparents. They no longer have the benefit of claiming “superior rights”.

Grandparent visitation is governed by statute in Tennessee. Under TCA 36-6-306 et seq., grandparents can have standing or the right to file a formal petition in court for visitation only under certain circumstances. Those circumstances include cases where a child’s mother or father is deceased, where the natural parents were never married, where the parents are divorced or legally separated. Grandparents may also have a right to seek visitation in cases where they can establish that a significant relationship has existed between themselves and their grandchildren or the grandchildren have lived with the grandparents for a period of 12 months or longer.

Grandparents must next demonstrate to the court that such visitation, if denied by the natural parents, would result in substantial harm to the grandchildren and whether such visitation is in the grandchildren’s best interest. Again, this can be shown where there is an emotional bond between the grandparents and grandchildren, where the grandparents have had significant contact with their grandchildren before the relationship or contact was disallowed, or whether the grandparents have been primary caretakers of their grandchildren before being denied any contact or visitation.

In any case, if you faced with a custody issue involving grandchildren it is important that you seek the advice of an attorney. Whether you are a natural parent or a grandparent, the decisions or choices you make today may very well have a bearing on later modifications or changes should they be sought.