The Tennessee’s Supreme Court agreed with AARP that grandparents should not be forced to reprove substantial harm to their grandchildren in a modification proceeding.
Eleven year old Emma is the biological daughter of Beth Copley and Jerry David Rochelle. Emma’s paternal grandmother (Norma Jean Lovlace) and her husband (Neal Lovlace) have been actively involved in Emma’s life and day-to-day care and closely bonded with her. They previously cared for her two days a week and provided assistance at the request of Emma’s parents.
After Emma’s parents divorced in 2004, the Lovlaces filed a petition for grandparent visitation and in 2006 the court found that there was a danger of substantial harm to Emma if she was not allowed some visitation with her grandparents. The court ordered visitation of at least one Saturday per month with a great deal of discretion given to Ms. Copley in determining logistics, times, etc. The court later found that she failed to comply with the order, removed Copley’s discretion and set specific times for visitation, and the mother appealed.
The Tennessee Court of Appeals ruled that the grandparents had failed to show a second time that Emma would be substantially harmed by lack of visitation. The grandparents appealed to Tennessee’s highest court and argued that since the court already found once a substantial risk of harm to their grandchild if visitation was denied, should not have to reprove and should only be required to prove that visitation was in the best interest of the child – the standard required of any parent seeking modification.
AARP Foundation Litigation attorneys filed AARP’s friend-of-the-court brief highlighting the academic research that shows grandparents are living longer and playing a more significant role in their grandchildren’s lives, and that children benefit by having a relationship with their grandparents. Arguing that the child’s needs should be considered preeminently, the brief urged the court to look at the child’s best interest - a less stringent legal standard and the one parents themselves can invoke - when modifying visitation rights.
The court agreed. After parsing the statute and extensively reviewing case law in Tennessee and other jurisdictions, the court ruled that there was no presumption of superior parental rights in a case where grandparent visitation had already previously been ordered, and ruled that grandparents stood on an equal footing with any parents seeking to modify visitation. The burden of proof in a modification proceeding is on the parent or grandparent seeking modification or termination to demonstrate by a preponderance of the evidence both that a material change in circumstances has occurred and that the change in circumstances mandates a modification of the prior order mandating grandparent visitation.
What’s at Stake
Grandparents are more involved in their grandchildren’s lives, a function of increased life expectancy, economic difficulties facing many families, and generational differences that are shifting more responsibility to grandparents. It is important that courts recognize the critical role played by involved grandparents when making decisions about visitation and custody.
Lovlace v. Copley was decided by the Tennessee Supreme Court.