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Date: 07-30-2022
Case Style:
James W. Rose et al. v. Patrick M. Malone
Case Number: M2021-00569-COA-R3-CV
Judge:
CARMA DENNIS MCGEE
Presiding Judge
W. NEAL
MCBRAYER
KRISTI M. DAVIS
Court:
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
On Appeal From The Chancery Court for Williamson County
Michael Binkley
Judge
Plaintiff's Attorney: Judy A. Oxford
Defendant's Attorney:
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Description:
Nashville, TN - Child Custody lawyer represented appellees with filing a petition for grandparent visitation.
This is a dispute between a child’s father, Patrick M. Malone (“Father”), and the
maternal grandparents of the child, James W. Rose and Jennie A. Rose (“Grandfather” and
“Grandmother,” or collectively, “Grandparents”). Father and Katherine R. Malone
(“Mother”) were married in 2008. Their only child, B.R.M., was born in 2012. In 2015,
Mother filed for a divorce, which resulted in the entry of a final decree of divorce in May
2017. Mother was named primary residential parent and awarded 319 days of parenting
time per year, with Father having 46 days. Tragically, Mother was killed in an accident
just three months later. Her death was an emotional time for all involved and gave rise to
some uncertainty about the child’s situation because of Father’s work. Father had started
a new job requiring him to travel to Texas and Mexico for weeks at a time, and he was
unsure how he would manage going forward. After Mother’s memorial service, it was
07/25/2022
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suggested that the child live with the maternal uncle and aunt for a time, but Father was
adamant that this would not happen. After the parties discussed the situation, there was no
question about Father’s intention to return to Nashville and care for the child; the only
question was what he needed to do to make that happen. Father was prepared to take the
child at this point, but he allowed the child to remain in Grandparents’ care for
approximately three weeks because he did not want to be insensitive to what they were
going through.
Following Mother’s death, her estate was probated. Much of the animosity between
the parties in this case stems from these probate court proceedings. According to
Grandparents, at the first hearing, they requested that the judge consider a trust or guardian
ad litem to represent the child because of concerns about Father’s financial responsibility.
Grandparents wished to establish and preserve a “nest egg” for the child. They believed
this was in the child’s best interests and claimed that they did not intend to hurt or interfere
with Father’s ability to parent the child. Conversely, Father claimed that he was the one
who first requested a trust be established and that Grandfather opposed him being named
a co-trustee. Ultimately, in June 2018, a trust was established, Father was named a cotrustee, and Grandparents were named trust protectors.1 Grandparents believed that Father
took umbrage at their actions to establish the trust and did not appreciate that they were
named as trust protectors. Father admittedly believed that Grandparents had the child’s
best interests in mind, but he took issue with the fact that the proceedings made his life
more difficult. According to Father, he eventually agreed to Grandparents being named
trust protectors because he just needed the proceedings to be over and was stressed about
paying for the child’s private school tuition.2
After the trust was established in June 2018, Father began opposing contact between
Grandparents and the child. He informed Grandparents that the child would not be able to
visit them for a July 4th parade, but, according to Grandparents, he did not seem to give a
reason why. After some correspondence between the parties, he relented and allowed the
child to visit that summer with Grandparents at their cabin in Washington. He determined
it would be a positive experience for the child to visit because she would have the
opportunity to meet her newborn maternal cousin, who was named after Mother. In
November 2018, the child visited with Grandparents again, but it would be the last time
they would see or talk to her until July 2019. The parties continued to correspond; however,
their conflict escalated.
Beginning in November 2018, Father ignored or denied numerous requests by
Grandparents to have contact with the child. He denied or ignored their requests for time
1 According to Grandfather, the role of trust protector allowed them to monitor the money paid out
of the trust on a monthly basis. The powers of a “trust protector” are enumerated in Tennessee Code
Annotated section 35-15-1201.
2 Father further explained that he had to pay the child’s tuition, but would be reimbursed from the
trust.
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during Thanksgiving, Christmas, and New Year’s Eve. He also denied or ignored several
of their requests to FaceTime the child. Nevertheless, Grandparents continued to make
requests hoping to repair their relationship in order to see the child. After five months of
no contact with the child, Grandparents were unable to engage in any dialogue with Father
indicating a change in the situation. Therefore, Grandparents filed a petition for
grandparent visitation in April 2019. In their petition, Grandparents stated that the last
time they had seen or talked to the child was in November 2018. Before that point, they
explained, they saw the child frequently, and they described their relationship with the
child as “wonderful.” Father filed an answer to the petition in May 2019, requesting that
the petition be dismissed. The parties later participated in mediation, but were unable to
resolve their differences. As such, the case ultimately went to trial in October 2020.3
During the three-day trial, Grandparents, Father, and the paternal grandfather
provided testimony. Grandparents had good things to say about Father and maintained that
he was a good parent to the child. However, they claimed that their relationship went awry
due to the probate court proceedings, and they filed the petition believing it was the only
way they would get to see the child. They were hopeful that the parties could repair their
relationship after this case concluded, but they ultimately believed that the child would be
harmed if visitation was not ordered by the court. Father testified that it was not his intent
to deny the child’s relationship with Grandparents, but he admitted to denying
Grandparents’ requests for contact with the child from November 2018 until July 2019.
He also had good things to say about Grandparents, but he took issue with their actions in
the probate court proceedings. The paternal grandfather believed that Grandparents loved
the child and that the child loved them, but he did not believe any harm had come to her
from the situation with visitation in the past two years.
The trial court found each witness to be credible and stated that each testified
sincerely, honestly, and directly. In February 2021, the trial court entered a memorandum
and order granting the petition for grandparent visitation. The trial court found the
following: Father expressly and actually opposed grandparents’ visitation from June 2018
until April 2019; Tennessee Code Annotated 36-6-306(a)(1) applied because Mother was
deceased; there was a clear danger of substantial harm to the child if visitation with
Grandparents continued to be denied; and reasonable and regularly-scheduled visitation
with Grandparents was in the child’s best interests. Following the entry of trial court’s
order, Grandparents filed a motion for attorney’s fees and costs. The trial court entered an
order granting in part and denying in part the motion. Thereafter, Father timely filed an
appeal.4
3 Trial was originally set for May 2020, but was continued to October 2020 due to COVID-19.
4 After filing the appeal, Father filed a motion for stay moving the trial court to stay the enforcement
of its order granting Grandparents’ petition for visitation. Grandparents then filed an expedited motion to
enforce the court’s order. In July 2021, the trial court denied Father’s motion to stay and granted in part
Grandparents’ motion to enforce. The trial court also granted a motion permitting both parties to file a
“Proposed Findings of Fact and Conclusions of Law” for purposes of appeal. Furthermore, we note that
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II. ISSUES PRESENTED
Father presents the following issues for review on appeal, which we have slightly
restated:
1. Whether the trial court erred in finding that Father opposed grandparent visitation,
when Grandparents had not requested any visitation from December 2018 to April
2019, at which time they filed their petition for grandparent visitation, and testimony
demonstrated that Father was not opposed to visitation;
2. Whether the trial court erred in finding that the rebuttable presumption of danger of
substantial harm to the child was not overcome, when there was substantial proof
the child was doing well and the court stated at trial that the child was doing well;
3. Whether the trial judge erred in finding that it was in the best interests of the child
for grandparent visitation to be ordered; and
4. Whether the trial court erred in ordering (a) visitation that was not the minimum
visitation for the relationship between Grandparents and the child to be maintained;
(b) FaceTime visits every single Sunday evening year-round; and (c) Father to
provide notice to Grandparents about extracurricular activities and having to permit
them to attend all the activities; such that Father’s relationship and activities with
the child were frequently interfered with by Grandparents.
Grandparents present similar issues for review on appeal, which we have slightly restated:
1. Whether the trial court correctly found that Father opposed grandparent visitation;
2. Whether the trial court correctly found that Father failed to overcome the rebuttable
presumption of danger of substantial harm to the child;
3. Whether the trial court correctly determined that grandparent visitation was in the
best interests of the child; and
4. Whether the visitation schedule set forth in the trial court’s memorandum and order
was reasonable.
For the following reasons, we affirm the decision of the trial court.
III. STANDARD OF REVIEW
On appeal, our “[r]eview of findings of fact by a trial court in civil actions is de
novo upon the record of the trial court, accompanied by a presumption of correctness of
the findings, unless the preponderance of evidence is otherwise.” Manning v. Manning,
474 S.W.3d 252, 256 (Tenn. Ct. App. 2015) (citing Tenn. R. App. P. 13(d); In re Taylor
B.W., 397 S.W.3d 105, 112 (Tenn. 2013)). We have explained that “[a] determination of
Grandparents filed a motion to dismiss Father’s appeal with this Court pursuant to the fugitive
disentitlement doctrine, but the motion was denied.
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visitation ‘often hinges on subtle factors such as the [parties’] demeanor and credibility
during the trial proceedings.’” Id. (quoting Battleson v. Battleson, 223 S.W.3d 278, 282
(Tenn. Ct. App. 2006)). Accordingly, when determinations of credibility and weight of
testimony are involved, “considerable deference must be afforded to the trial court when
the trial judge had the opportunity to observe the witness’[s] demeanor and to hear in-court
testimony.” Id. (quoting Morris v. Allen, 338 S.W.3d 417, 426 (Tenn. 2011)). Our review
of conclusions of law by a trial court is de novo, with no presumption of correctness.
McGarity v. Jerrolds, 429 S.W.3d 562, 566 (Tenn. Ct. App. 2013) (citing Blair v.
Brownson, 197 S.W.3d 681, 684 (Tenn. 2006) (citation omitted)).
IV. DISCUSSION
A dispute between a parent and a grandparent over visitation with a child presents
“a conflict between the parent’s constitutional right to make decisions about the care and
custody of the child and the grandparent’s right to visitation under Tennessee Code
Annotated section 36-6-306.” Coleman v. Olson, 551 S.W.3d 686, 697 (Tenn. 2018); see
Smallwood v. Mann, 205 S.W.3d 358, 362-63 (Tenn. 2006). “The right of a parent to raise
a child is a fundamental liberty interest protected by the Fourteenth Amendment to the
United States Constitution and article I, section 8 of the Tennessee Constitution.” Id. at
697-98 (citing Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993) (citations omitted)).
It is well established that a parent’s “rights to the care and custody of their children without
undue government interference is ‘among the oldest of the judicially recognized liberty
interests protected by the due process clauses of the federal and state constitutions.’” Id.
at 698 (quoting Lovlace v. Copley, 418 S.W.3d 1, 30 (Tenn. 2013) (citation omitted)); see
also State ex rel. Bethell v. Kilvington, 45 S.W. 433, 435 (Tenn. 1898). Additionally, a
parent has “a privacy interest that protects them from unwarranted state intervention in
parental decision-making and prohibits the court from imposing its subjective notion of
what is in the ‘best interests of the child.’” Id. (quoting Hawk, 855 S.W.2d at 579-80).
Nevertheless, “the state may interfere with these rights when there is a compelling
state interest.” Id. (citing Smallwood, 205 S.W.3d at 362-63). Our Supreme Court has
explained that “[t]he state has a role of parens patriae and a duty to protect minors, and the
state may intervene in parental decision-making when necessary to prevent substantial
harm to the child.” Id. (citing In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)
(citation omitted)); see also Hawk, 855 S.W.2d at 581 (holding that “neither the legislature
nor a court may properly intervene in parenting decisions absent significant harm to the
child from those decisions”). A parent is protected from unwarranted state interference in
the parenting process by this substantial harm requirement. Id. (citing Hawk, 855 S.W.2d
at 580). Finally, when addressing grandparent visitation rights, this Court must perform a
“three-pronged analysis.” McGarity, 429 S.W.3d at 572 (quoting Marlene Eskind Moses
& Jessica J. Uitto, The Current Status of Tennessee’s Grandparent Visitation Law, 46
Tenn. B.J., 24, 24 (Jan. 2010) (footnotes omitted)). That analysis is described as follows:
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First, the grandparent seeking the court’s intervention must show that one of
six situations exists pursuant to Tenn. Code Ann. § 36-6-306(a). Second, the
court must determine whether there is a danger of substantial harm to the
child if the child does not have visitation with the grandparent. . . . In
conjunction with this analysis, the court must also determine if the
relationship between the child and grandparent is significant based on [the]
factors set out in Tenn. Code Ann. § 36-6-306(b)(2). Third, if the court finds
that there is danger of substantial harm if the child does not have visitation
with the grandparent, it must decide whether the visitation would be in the
child’s best interest based on [eleven] factors under Tenn. Code Ann. § 36-
6-307.
Id. (quoting Moses & Uitto, supra, at 24 (footnotes omitted)).5
A. Opposition
For the first prong, Father contends that the trial court erred in finding that he
opposed grandparent visitation. The Grandparent Visitation Statute provides in pertinent
part:
(a) Any of the following circumstances, when presented in a petition for
grandparent visitation to the circuit, chancery, general sessions courts with
domestic relations jurisdiction, other courts with domestic relations
jurisdiction or juvenile court in matters involving children born out of
wedlock . . . , necessitates a hearing if such grandparent visitation is opposed
by the custodial parent . . . or if the grandparent visitation has been severely
reduced by the custodial parent . . . [.]
Tenn. Code Ann. § 36-6-306(a) (emphasis added).6
This Court has explained that “the
Grandparent Visitation Statute is not even implicated unless the grandparent can establish
that visitation was opposed [or severely reduced] by the custodial parent before the petition
was filed.” In re Trinity P., No. M2020-01481-COA-R3-JV, 2021 WL 5816456, at *3
(Tenn. Ct. App. Dec. 8, 2021) (quoting Uselton v. Walton, No. M2012-02333-COA-R3-
CV, 2013 WL 3227608, at *12 (Tenn. Ct. App. June 21, 2013)) (footnote omitted).
Therefore, if the petitioner is unable to prove either opposition to visitation or severe
reduction in visitation, “a trial court has no basis for engaging in substantial harm analysis
or awarding the petitioner any relief.” Id. at *4 (quoting Morisch v. Maenner, No. W2020-
5 Under a prior version of Tennessee Code Annotated section 36-6-307, there were only seven
factors. However, after an amendment in July 2011, Tennessee Code Annotated section 36-6-307 now has
eleven factors.
6 Father does not specifically challenge the trial court’s finding that an enumerated statutory
circumstance applied, which in this case was Tennessee Code Annotated section 36-6-306(a)(1): “The
father or mother of an unmarried minor child is deceased[.]”
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00362-COA-R3-JV, 2021 WL 1102364, at *3 (Tenn. Ct. App. Mar. 23, 2021) (citing
Manning, 474 S.W.3d at 257-58; Tenn. Code Ann. § 36-6-306(b)(c))).7
Our Supreme Court has explained that “[t]he term ‘opposed’ includes situations
both where visitation is denied totally and where visitation is technically not opposed, but
the frequency and/or conditions imposed by the parents on visitation are such that it equates
to a denial of visitation.” Lovlace, 418 S.W.3d at 21 (quoting Huls v. Alford, No. M2008-
00408-COA-R3-CV, 2008 WL 4682219, at *8 (Tenn. Ct. App. Oct. 22, 2008)); see also
Angel v. Nixon, No. M2010-00554-COA-R3-CV, 2010 WL 4483915, at *3 (Tenn. Ct. App.
Nov. 8, 2010); Wilson v. Gladden, No. E2008-02283-COA-R3-CV, 2009 WL 2176460, at
*2 (Tenn. Ct. App. July 22, 2009). Additionally, “the Legislature’s use of the words, ‘is
opposed by,’ means actual existing opposition—not likely future opposition.” Coleman,
551 S.W.3d at 699. Opposition may be proven “by presenting evidence of actual or
constructive denial of visitation.” Id. “Constructive denial occurs when the custodial
parent limits or restricts the frequency or conditions of visitation so that it is the same as a
denial of visitation.” Id. at 699-700 (citing Lovlace, 418 S.W.3d at 21 (citation omitted)).
The trial court found that Father opposed grandparent visitation with the child from
June 2018 until April 2019. The trial court stated in its order that Father denied or ignored
Grandparents’ requests to communicate with the child and clearly expressed his intent to
deny any in-person visitation between Grandparents and the child. Father testified that he
was not opposed to visitation; rather, he wanted to be in control of the timing and wanted
to avoid court-ordered visitation. He argues in his appellate brief that Grandparents did
not request any in-person visitation from December 2018 to April 2019 because they only
requested to FaceTime with the child during this period, and FaceTime was not a visit.
Thus, he was surprised that Grandparents claimed he was opposed to visitation in their
petition.
The text messages between Grandparents and Father tell a different story and
demonstrate that the filing of the petition should not have been a surprise to Father. Father
began to show opposition toward grandparent visitation in June 2018, when he and
Grandmother were discussing whether the child would spend time with Grandparents
during the summer. In a text message to Grandmother, Father stated as follows:
I’m not sure about the 4th. I’ve also decided that I don’t feel comfortable
7
In 2016, the General Assembly amended the Grandparent Visitation Statute changing “the
threshold requirements for application of the . . . Statute insofar as the trial court may now consider ordering
visitation upon a showing by the petitioning grandparent that visitation, and as a result the grandparentgrandchild relationship, was severely reduced rather than requiring that visitation must have been opposed
or denied by the custodial parent.” In re Trinity P., 2021 WL 5816456, at *3 n.6 (quoting Horton v. Cooley,
No. M2019-00945-COA-R3-CV, 2020 WL 2731235, at *4 n.3 (Tenn. Ct. App. May 26, 2020) (quoting
Clark v. Johnson, No. E2017-01286-COA-R3-CV, 2018 WL 2411203, at *10 (Tenn. Ct. App. May 29,
2018))).
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letting her travel to Washington either. After the way you’ve behaved in
court, I can’t imagine you and [Grandfather] being very complimentary of
me when she stays with you. You’ve made life more difficult for me than it
already is and I’m no longer willing to go out of my way to accommodate
you. I was willing to do it for [B.R.M.], but it’s reached a point where
continuing to do so isn’t in her best interest moving forward.
In July 2018, Grandmother responded that she had already purchased a plane ticket for the
child to accompany her to Washington and asked Father to let her know if he had a change
of heart. She also stated that she thought it was important for the child to have contact with
Mother’s family and that was something that Mother would want. Father then responded
in part, “I’m completely familiar with this sense of entitlement. I was as disgusted by it
then as I am now.” Father continued to communicate with Grandmother in a manner which
we would characterize as a rant. He stated in part, “[Y]our time with her will now be
limited” and “I’ll reconsider your level of involvement in her life moving forward.”
Grandfather testified that Father’s behavior changed after the trust for the child was
established in June 2018. He believed that Father was upset that Grandparents were named
as trust protectors and that this led to tension in their relationship. Father referred to the
establishment of the trust as a “Pyrrhic victory” for Grandparents. He then informed
Grandparents that the child would not be able to visit them for a July 4th parade. He also
did not want the child to visit with Grandparents at their cabin in Washington that same
month, but later relented and allowed her to visit. Grandparents saw the child again in
November 2018, which was the last time they saw or spoke with the child until after the
filing of their petition in April 2019.
Grandfather and Father engaged in back-and-forth correspondence from September
2018 until March 2019, which was largely unproductive. In December 2018, Grandfather
made a request to FaceTime the child, but it was ignored. He made another request to
FaceTime the child in January 2019, but Father denied his request. Grandfather asked,
“how long do you expect this to continue?” Father replied, “Indefinitely. How about until
I feel I can trust you again? I’ll let you know.” After more back-and-forth between them,
Father stated, “[W]atch me not message you for the next 6 months. Take care.”
Grandfather then made several requests for FaceTime calls with the child that Father
ignored. At one point, Grandfather asked if they could “bury the hatchet.” However,
Father replied with a lengthy text message, in which he stated in part, “No, it seems we’re
pretty far apart on this one.” He also stated, “I’m looking forward to not having to deal
with you anymore once this is done and I can assure I won’t be losing any sleep over it.”
He concluded this particular conversation by saying, “I can’t control what you do, but I can
hold you accountable for it with regard to spending time with my daughter. I intend to do
just that. Take care.”
From November 2018 until March 2019, Grandmother also made several requests
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for in-person visits or FaceTime calls with the child, most of which were ignored by Father:
11/4/18, 6:48 PM
Grandmother: [B.R.M.] available for a FaceTime at 7 [tonight]?
11/5/18, 8:18 PM
Grandmother: Not sure of your travel plans for Thanksgiving or [B.R.M.]’s
school schedule, but we would be glad to bring [B.R.M.] to Topeka with us.
Tentatively plan to leave Nashville on Sunday and arrive in Topeka on
Monday. Could even flex that if needed.
11/22/18, 10:49 AM
Grandmother: Happy Thanksgiving! Know you are with family today but
we are eager to see [B.R.M.]. We are open tomorrow and/or Saturday. Let
us know. Thanks!
11/23/18, 12:41 PM
Grandmother: Package arrived here for [B.R.M.]. We are home if you want
to pick up.
11/25/18, 12:13 PM
Grandmother: Please let us know when you and [B.R.M.] are safely home
in Tennessee. Roads are nasty here. Thanks[.]
11/30/18, 3:39 PM
Grandmother: We’d like to talk to [B.R.M.] this weekend. Please let us
know a good time.
12/2/18, 11:03 AM
Grandmother: [Sent a picture of [B.R.M.] sitting with Santa Claus]
Grandmother: Hoping to talk to this little elf today.
12/7/18, 10:13 AM
Grandmother: Would [B.R.M.] be interested in ice skating lessons again
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this year? Only rink I can find is one she attended last year? Fit your
schedule?
12/16/18, 7:16 PM
Grandmother: [B.R.M.]able to FT tonight? Let me know best time.
2/3/19, 3:02 PM
Grandmother: Good time to FT later today?
Father: Nope. Busy all day.
2/8/19, 4:23 PM
Grandmother: Good time for you this week-end to FT?
3/3/19, 7:50 PM
Grandmother: Still awake?
Father: iPad is broken. FaceTime on my phone doesn’t seem to work.
Sorry.
Additionally, there was a group text between Grandmother, Father, and the paternal
grandmother, in which Grandmother requested time with the child at the end of 2018:
12/29/18, 5:07 PM
Grandmother: We’ll plan to pick up [B.R.M.] at 9:30 tomorrow for church
and lunch. Let us know when you want her back.
12/29/18, 7:07 PM
Father: No . . . from now on you’ll be dealing with me and me alone when
it comes to time with [B.R.M.]. Despite what you might think, your behavior
in and out of court has consistently demonstrated to me that you don’t have
her best interest at heart and will always put your needs ahead of hers, or
anyone else’s. You seem to have confused your rank with my authority and
my kindness for weakness one too many times. While you may have
convinced the court that you’re indispensable parties when it comes to her
estate, allowing you to whine and complain at [B.R.M.]’s expense whenever
you don’t get your way. I’m her father and will decide what’s in her best
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interest everywhere else. I can assure you that you’re quite dispensable.
Quite frankly, I think you’re horrible people, arrogant, selfish, and entitled.
I hear all the lies you tell people and the comments you’ve made about me
and my family. I don’t like you, but have always gone out of my way to
make sure you were able to spend time with [B.R.M.] despite your behavior.
I’ve decided not to do that anymore though because I no longer feel that’s in
[B.R.M.]’s best interest, so now you’ll actually have something to complain
about.
Whenever I hear that you’ve attempted to contact my mother instead of me
directly, I take that as a sign that you simply don’t get it and that doesn’t help
your cause. If you don’t hear from me then you aren’t spending time with
[B.R.M.]. It’s that simple. When you start putting her interests ahead of your
own then maybe I’ll reconsider, but in the meantime she won’t be spending
time with people who have routinely gone out of their way to make my life
difficult, which in turn only makes [B.R.M.]’s life more difficult. Happy
New Year’s!
Grandmother: Over . . . fifteen attempted contacts with you since before
Thanksgiving and this your first response.
You think denying us contact with [B.R.M.]for Thanksgiving, Christmas and
New Years is the right thing to do?
[Mother] always offered your mom and dad an opportunity to have
[B.R.M.]when she came to Topeka, even when you and she were estranged
and you prohibited her from telling your mom and dad.
At this point, Grandfather intervened and replied with a lengthy text message, stating in
part, “It pains us that you intend to cut us out of her life. Don’t know what you gain by
doing so except spite.” Father then replied with several lengthy text messages. He stated
that [Mother] “was busy plotting and scheming” when they had been separated, that “the
apple doesn’t fall too far from the tree,” and that Grandfather was “clueless” and “a
weasel.” Grandfather then replied, “Hope you get medical attention soon.”
Grandmother testified that she was growing tired of Father not responding or
sending angry replies that made her feel uncomfortable, so she stopped trying after March
2019. She did not want to be accused of badgering Father. She also explained that they
did not request in-person visits throughout this time because they believed FaceTime calls
would be an interim step that would lead to in-person visitation. Despite their requests,
Grandparents did not have any contact with the child for approximately five months. Thus,
Grandparents felt that filing the petition for grandparent visitation in April 2019 was
necessary under the circumstances. In July 2019, Grandparents were finally able to
exercise visitation with the child after neither seeing nor talking to her for approximately
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eight months. After that, they were able to visit or FaceTime with the child a few times,
but it was “minimal” in comparison to the time they had spent with the child before
Mother’s death. Father continued to deny many of their requests to visit, have FaceTime
calls, or attend the child’s extracurricular activities.
The text messages referenced above reveal not only the deterioration of the parties’
relationship, but also Father’s opposition to grandparent visitation from November 2018
until the petition was filed in April 2019. As such, we disagree with Father’s argument
that he did not oppose grandparent visitation, when he consistently denied or ignored
Grandparents’ requests for any contact with the child for five months. Furthermore, the
fact that Grandparents were only requesting FaceTime calls with the child throughout most
of this period does not affect our conclusion. Black’s Law Dictionary defines “visitation,”
as used in the family law context, as “[a] relative’s . . . period of access to a child.”
Visitation, Black’s Law Dictionary (11th ed. 2019). Father denied or ignored
Grandparents’ requests for any contact or access to the child for five months, whether in
person or through FaceTime.
While Father testified that it was not his intent to deny the child’s relationship with
Grandparents, he clearly communicated to them in his own words that the denial of contact
with the child was going to continue “[i]ndefinitely.” He clearly communicated, “If you
don’t hear from me then you aren’t spending time with [B.R.M.],” and then denied or
ignored their requests to visit or FaceTime with the child. He admitted that he ignored
their requests from November 2018 until April 2019 and that he could have responded to
some of their requests. He explained that he just did not make it a priority when he should
have and was regretful about his actions keeping the child from Grandparents.
Furthermore, he admitted that he did not accept the “olive branch” extended by
Grandparents in February 2019, which might have prevented the filing of this petition.
Although Father testified he was technically not opposed to visitation, the evidence
preponderates in favor of the finding that there was “actual existing opposition” when the
petition was filed. Coleman, 551 S.W.3d at 699. As such, we conclude that the trial court
did not err in finding that Father opposed grandparent visitation.
B. Substantial Harm
Grandparents carried their threshold burden by showing that Father opposed
grandparent visitation, but our analysis does not end here. See In re Trinity P., 2021 WL
5816456, at *4 (explaining that a petitioner must prove either opposition to visitation or
severe reduction in visitation before the court can engage in substantial harm analysis or
award the petitioner any relief). We now review the second prong to determine the
“presence of a danger of substantial harm to the child.” Tenn. Code Ann. 36-6-306(b)(1).
For this issue, the relevant portion of the Grandparent Visitation Statute provides:
(b)(1) In considering a petition for grandparent visitation, the court shall first
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determine the presence of a danger of substantial harm to the child. Such
finding of substantial harm may be based upon cessation or severe reduction
of the relationship between an unmarried minor child and the child’s
grandparent if the court determines, upon proper proof, that:
. . .
(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 and substantial harm to the child.
(2) For purposes of this section, a grandparent shall be deemed to have a
significant existing relationship with a grandchild if:
(A) The child resided with the grandparent for at least six (6)
consecutive months;
(B) The grandparent was a full-time caretaker of the child for a period
of not less than six (6) consecutive months; or
(C) The grandparent had frequent visitation with the child who is the
subject of the suit for a period of not less than one (1) year.
(3) A grandparent is not required to present the testimony or affidavit of an
expert witness in order to establish a significant existing relationship with a
grandchild or that the loss or severe reduction of the relationship is likely to
occasion severe emotional harm to the child. Instead, the court shall consider
whether the facts of the particular case would lead a reasonable person to
believe that there is a significant existing relationship between the
grandparent and grandchild or that the loss or severe reduction of the
relationship is likely to occasion severe emotional harm to the child.
(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 or severe reduction of the relationship between the child and
grandparent.
Tenn. Code Ann. § 36-6-306(b).
Father concedes that subsection (b)(4) applies here because Mother is deceased and
the maternal grandparents are seeking visitation. Rather, Father contends that the trial court
erred in finding that the rebuttable presumption of danger of substantial harm to the child
was not overcome when there was considerable proof the child was doing well and the
court stated at trial that the child was doing well. When subsection (b)(4) applies, we have
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explained that the burden of proof shifts from the grandparents to the opposing parent, and
the grandparents have the benefit of the rebuttable presumption of substantial harm to the
child based upon the cessation of the relationship between the grandparents and the child.
Jackson v. Smith, No. W2011-00194-COA-R3-CV, 2011 WL 3963589, at *3 (Tenn. Ct.
App. Sept. 9, 2011); see Coleman, 551 S.W.3d at 699 (“These circumstances created a
rebuttable presumption of substantial harm under Tennessee Code Annotated section 36-
6-306(b)(4).”).
The trial court found that Father’s testimony largely supported a finding of harm to
the child, rather than rebutting the presumption in Tennessee Code Annotated section 36-
6-306(b)(4). Therefore, the trial court concluded that there was a clear danger of substantial
harm to the child if visitation with Grandparents continued to be denied. Father asserts he
can disprove the trial court’s finding that there was a danger of substantial harm to the
child. He testified that the child was happy and healthy, and he did not feel as if there was
harm to the child from the situation with visitation thus far. The paternal grandfather
testified to this as well.
Father believed that consistency was important and that the child would benefit from
having certain expectations when it came to visiting Grandparents, but he wanted to have
full discretion to approve the visits. He admitted, however, that the frequency of visitation
now was nothing like the time Grandparents were able to spend with the child in the past.
Before Mother’s death, Grandparents saw the child frequently for birthdays, holidays, and
vacations. They provided a spreadsheet of in-person visits that they had with the child.
Prior to Father’s opposition, they visited with the child on nearly 70 different occasions
from time of the child’s birth in June 2012 until November 2018. From November 2018
until the time of trial in October 2020, they had only visited with the child on seven
occasions for a total of 21 hours, two of which were chance encounters. Additionally, they
were only permitted to FaceTime the child once in 2019 and once in 2020.
Although the child was handling herself well, she struggled with missing Mother on
occasions. There was at least one instance where Father determined that visiting with
Grandparents would be beneficial for the child because of this struggle. When the child
returned from the visit, Father stated that she was in good spirits. Although Father thought
that it was important, he admitted he did not have the means to facilitate the relationships
between the child and those who had been associated with Mother. He did not ask the child
if she wanted to spend time with Grandparents when he denied them time for Thanksgiving,
Christmas, and New Year’s Eve in 2018. He did not permit or invite the Grandparents to
the child’s extracurricular activities, despite knowing that she would like to see
Grandparents at these activities. He admitted that the child loved Grandparents and
enjoyed being around them. However, after he denied Grandparents contact with her for
several months, she became “angry,” “reticent,” and “guarded” toward them when she was
finally able to see them again in July 2019. She was very much aware of Grandparents’
absence because she asked why they were not at her school’s Grandparents’ Day. Because
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of this behavior, Grandparents feared that the child would feel abandoned by them or angry
with them. They worried that shutting them out would sever the child’s connection to
Mother and that they would become strangers to the child if they were not allowed to have
more involvement. As such, they feared that if visitation was not ordered by the court, the
child would lose Mother’s family in addition to losing her Mother.
We have held that “the evidence regarding substantial harm must be ‘specific to this
child’s relationship with this grandparent.’” McGarity, 429 S.W.3d at 579 (citing Green
v. Evans, M2011-00276-COA-R3-CV, 2012 WL 1107887, at *10 (Tenn. Ct. App. Mar. 20,
2012) (emphasis added)). “Hypothetical evidence of the child’s reaction to the cessation
of a relationship with another grandparent undoubtedly fails to meet this standard.” Id.
Similar to Angel, 2010 WL 4483915, at *4, there is evidence here that the child is generally
healthy and happy, but the separation from Grandparents had already begun to have
negative effects on the child. In their first visit together after eight months of no contact,
the child had to “warm up” to Grandparents after showing signs of restraint and confusion
as to why she had not seen them in so long. Furthermore, this case is similar to Keenan v.
Dawson, 739 N.W.2d 681, 688 (Mich. Ct. App. 2007), a case this Court considered in
McGarity. Although the Court in McGarity found that Keenan was not analogous to its
facts, we find it instructive. McGarity, 429 S.W.3d at 580. Like this case, the child’s
maternal grandparents in Keenan filed a petition for grandparent visitation after the death
of their daughter, the child’s mother. Id. at 576-77 (citing Keenan, 739 N.W.2d at 683).
The Keenan Court ultimately concluded that the child in its case would be substantially
harmed by failing to maintain any relationship or memory of his biological mother. Id. at
577 (citing Keenan, 739 N.W.2d at 688). The Court found that the maternal grandparents
were the child’s “best chance at learning about his deceased mother.” Id. (summarizing
the conclusion from Keenan in regard to substantial harm).
Here, the child had already begun to show the negative effects from her separation
from Grandparents, and there is a likelihood that substantial harm would come to her if she
was unable to keep Mother’s memory alive by maintaining a relationship with them. While
Father testified that he talked to the child about Mother frequently, Grandparents were
undeniably the child’s best connection to Mother’s side of the family. Father thought that
it was important for the child to maintain the relationships with people who had known
Mother, but he admitted he did not have the means to facilitate those relationships.
Grandparents were willing and able to fill that role. Without court-ordered visitation, we
find that the evidence demonstrates there was a danger of substantial harm to the child.
Accordingly, we conclude that the trial court did not err in finding that Father failed to
overcome the rebuttable presumption in Tennessee Code Annotated section 36-6-
306(b)(4).
C. Best Interests of the Child
As for the third prong, Father argues that the trial court erred in finding that it was
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in the best interests of the child for grandparent visitation to be ordered. Subsection (c) of
the Grandparent Visitation Statute provides:
(c) Upon an initial finding of danger of substantial harm to the child, the court
shall then determine whether grandparent visitation would be in the best
interests of the child based upon the factors in § 36-6-307. Upon such
determination, reasonable visitation may be ordered.
Tenn. Code. Ann. § 36-6-306(c). Following its consideration of the applicable factors, the
trial court found that visitation with Grandparents was in the child’s best interests. The
best interests factors include, but are not necessarily limited to, the following:
(1) The length and quality of the prior relationship between the child and the
grandparent and the role performed by the grandparent;
(2) The existing emotional ties of the child to the grandparent;
(3) The preference of the child if the child is determined to be of sufficient
maturity to express a preference;
(4) The effect of hostility between the grandparent and the parent of the child
manifested before the child, and the willingness of the grandparent, except
in case of abuse, to encourage a close relationship between the child and the
parent . . . of the child;
(5) The good faith of the grandparent in filing the petition;
(6) If the parents are divorced or separated, the time-sharing arrangement that
exists between the parents with respect to the child;
(7) If one (1) parent is deceased or missing, the fact that the grandparents
requesting visitation are the parents of the deceased or missing person;
(8) Any unreasonable deprivation of the grandparent’s opportunity to visit
with the child by the child’s parents . . . , including denying visitation of the
minor child to the grandparent for a period exceeding ninety (90) days;
(9) Whether the grandparent is seeking to maintain a significant existing
relationship with the child;
(10) Whether awarding grandparent visitation would interfere with the
parent-child relationship; and
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(11) Any court finding that the child’s parent . . . is unfit.
Tenn. Code Ann. § 36-6-307.
The first and second factors weigh in favor of ordering visitation. Grandparents had
been involved in the child’s life since she was born. They had spent a lot of time together,
had fun together, and had even been given the nicknames “Papa” and “Honey” by the child.
Their relationship was described as wonderful. Prior to Father’s opposition, they visited
with the child on nearly 70 different occasions over the course of a six-year period. Father
admitted that the child and Grandparents had a loving relationship and the child loved and
enjoyed being with them. The child was comforted by them after Mother’s death and was
happy to see them when she was allowed to. The third factor, the preference of the child,
is inapplicable because there was no determination that the child was of sufficient maturity
to express a preference.
The fourth and fifth factors weigh in favor of ordering visitation. After Mother’s
death in August 2017, the parties began to have conflict with each other during the probate
of her estate. They engaged in name-calling and lengthy exchanges of no productive value.
Although it affected their relationship with each other, their conflict was never manifested
before the child. Despite their differences, Grandparents maintained that Father was a good
parent and continued to encourage the child’s relationship with him after Mother’s death.
The parties were always cordial in person and hoped to repair their relationship after this
case was over. Grandparents felt the filing of their petition was necessary due to the lack
of contact that they had had with the child. The trial court credited Grandparents’ testimony
and found no indication of bad faith on their part. The sixth factor is inapplicable in light
of Mother’s death.
The next four factors weigh in favor of ordering visitation. Grandparents were the
parents of Mother, a deceased parent of the child. Beginning in November 2018, Father
denied or ignored Grandparents the opportunity to visit or FaceTime with the child for
approximately five months, which exceeded a period of 90 days. Grandparents testified
that the petition was filed for the purpose of maintaining their relationship with the child.
They worried that they would become strangers to the child if Father’s opposition was
allowed to continue. They were not attempting to hurt Father or undermine his authority
as a parent. Father admitted that allowing Grandparents more participation in the child’s
activities would not subtract from his parenting time. There was no finding by the trial
court that Father was unfit to parent the child, and the final factor is therefore inapplicable.
In light of our review of these factors, we conclude that the trial court did not err in
finding that it was in the best interests of the child for grandparent visitation to be ordered.
D. Reasonable Visitation
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The crux of Father’s final issue concerns the reasonableness of the trial court’s
award of grandparent visitation. The trial court’s order included the following in regard to
visitation:
1. Visitation. Grandparents shall have in-person visitation with [B.R.M.],
every year, at the following times:
Mother’s Day weekend, from after school on Friday (or 3:00 p.m., if
school is not in session) until 5:00 p.m. on Sunday;
Up to ten (10) consecutive days in July. Grandparents shall notify Father,
in writing, of their proposed dates for this visitation time no later than
May 15 of each year;
The weekend closest to Mother’s birthday in September, from after
school on Friday (or 3:00 p.m., if school is not in session) until 5:00 p.m.
on Sunday;
The weekend prior to Thanksgiving, from after school on Friday (or 3:00
p.m., if school is not in session) until 5:00 p.m. on Sunday.
2. Location. The location for Grandparents’ visitation shall be any location
of their choosing. The place of exchange shall be Father’s residence, unless
otherwise agreed. Grandparents shall be responsible for making any
necessary transportation arrangements for [B.R.M.], and shall be responsible
for all costs associated with transportation and visitation. Grandparents shall
provide to Father, in writing, a detailed itinerary for their visits, no later than
three (3) days prior to the beginning of their visits.
3. FaceTime. Grandparents shall be allowed one (1) FaceTime call with
[B.R.M.] each week, at 7:00 p.m. on Sunday for thirty (30) minutes unless
otherwise agreed. Father will facilitate these FaceTime calls.
4. Extracurricular Activities. Upon written request from Grandparents,
Father shall promptly provide to Grandparents an updated written schedule
of [B.R.M.]’s extracurricular activities which are open to attendance by the
public or by family members, including sporting events, school functions
such as Grandparents’ Day, and Chapel. Grandparent shall provide to Father
at least forty-eight (48) hours’ written notice of their intent to attend any of
[B.R.M.]’s extracurricular activities.
(a) In the event [B.R.M.] has any regularly-scheduled extracurricular activity
during Grandparents’ visitation time, Grandparents shall either: (i)
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facilitate [B.R.M.]’s attendance at her scheduled activities; or (ii) forego
their visitation.
(b) In the event [B.R.M.]has any regularly-scheduled extracurricular activity
during the time for Grandparents’ weekly FaceTime call, Father shall
notify Grandparents in writing of an alternative time for their weekly call.
5. The parties remain free to supplement or modify this visitation schedule
by written agreement.
Father asserts that his relationship and activities with the child were frequently interfered
with by Grandparents due to the trial court’s award of grandparent visitation. Father
specifically argues that the trial court erred in ordering (a) visitation that was not the
minimum visitation for the relationship between Grandparents and the child to be
maintained; (b) FaceTime visits every Sunday evening year-round; and (c) Father to
provide notice to Grandparents about extracurricular activities and having to permit them
to attend all the activities.
“Appellate review of a visitation order is governed by an abuse of discretion
standard, with the child’s welfare given paramount consideration.” Smallwood, 205
S.W.3d at 361 (citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)). “Even when
grandparents satisfy the initial requirements necessary to obtain visitation, the visitation
schedule must be 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.” Lovlace, 418 S.W.3d at 31. Additionally, “[t]he level
of visitation necessary to minimize harm is dependent on the unique facts of each case.”
In re Diawn B., No. M2017-01159-COA-R3-JV, 2018 WL 3530838, at *4 (Tenn. Ct. App.
July 23, 2018); see In re Dayton R., No. W2015-01848-COA-R3-JV, 2016 WL 1403255,
at *7 (Tenn. Ct. App. Apr. 7, 2016). Nevertheless, it is not this Court’s role to “tweak” an
award of grandparent visitation “in the hopes of achieving a more reasonable result than
the trial court.” Marlow v. Parkinson, 236 S.W.3d 744, 748 (Tenn. Ct. App. 2007) (quoting
Eldridge, 42 S.W.3d at 88). Therefore, “a trial court’s decision regarding . . . visitation
will be set aside only when it ‘falls outside the spectrum of rulings that might reasonably
result from an application of the correct legal standards to the evidence found in the
record.’” Id. (quoting Eldridge, 42 S.W.3d at 88).
Upon reviewing the trial court’s award of grandparent visitation, we are not
persuaded that it was unreasonable. Contrary to Father’s argument on appeal, much of the
visitation that was awarded were proposals he found agreeable when he testified. He
testified that he was willing to entertain a set day and time each week for the child to
FaceTime with Grandparents, which was what the trial court ordered. He also testified that
his parenting time would not be interfered with by allowing Grandparents to attend the
child’s extracurricular activities, which was what the trial court ordered. Moreover, the
trial court noted in its order that it took care to minimize any potential interference with the
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parent-child relationship and considered Father’s testimony heavily, which we find that it
did. In regard to weekend visitation, the trial court took into consideration Father’s
preference to have the child returned by Sunday evening instead of allowing Grandparents
to transport the child to school on Monday morning. Father thought that Grandparents’
proposal of two-and-a-half consecutive weeks during the summer was too much, and the
trial court reduced it to a maximum of ten days during July. There were only four visitation
periods awarded by the trial court, and all of them were important for the child to continue
her connection with Mother’s family and to maintain her memory of Mother. Two of the
visitation periods were Mother’s Day weekend and the weekend closest to Mother’s
birthday. The other two visitation periods—the ten days in July and the weekend before
Thanksgiving—were traditions that Grandparents had with the child and Mother when she
was still alive.
This Court has held that a “trial court abuses its discretion when it ‘acts contrary to
uncontradicted substantial evidence and ignores valid criteria.’” In re Dayton R., 2016 WL
1403255, at *7 (quoting Gooding v. Gooding, 477 S.W.3d 774, 779 (Tenn. Ct. App. 2015)
(citations omitted)). In this case, we cannot conclude that the trial court committed such
error. The trial court’s award of visitation was “carefully crafted,” Lovlace, 418 S.W.3d at
31, and was within the appropriate “spectrum of rulings,” Marlow, 236 S.W.3d at 748
(quoting Eldridge, 42 S.W.3d at 88). As a final argument, Father requests that the schedule
be modified so that it is minimal, without overnight visits, and excludes FaceTime and any
notices or attendance by Grandparents at extracurricular activities. However, as stated
before, it is not our role to “tweak” an award of grandparent visitation “in the hopes of
achieving a more reasonable result than the trial court.” Marlow, 236 S.W.3d at 748
(quoting Eldridge, 42 S.W.3d at 88). Accordingly, we decline to modify the visitation
schedule and find that the trial court’s award of visitation was not an abuse of discretion.
Outcome: For the aforementioned reasons, we affirm the decision of the trial court. Costs of
this appeal are taxed to the appellant, Patrick M. Malone, for which execution may issue if necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: