After trying several times with legislation that any decent attorney could have told them Tennessee's Supreme Court would hold unconstitutional, Tennessee lawmakers finally got it right in the 2000 legislative session, passing House Bill 2297, Chapter No. 891.  Tennessee now has a grandparent visitation law that will most likely pass any legal challenge and be found constitutional.  The statutes will be found at TCA 36-6-306 and TCA 36-6-307 as soon as they are added to code books.

    Tennessee law now allows a court to order visitation for grandparents under relatively narrow circumstances, none of them including cases where the parents of the grandchildren remain married to each other, or one of the parents has been missing for at least the last six months, or there is a valid court order for visitation from another state.

    But beyond that the court deciding a grandparent visitation case in Tennessee must then find that there is a "danger of substantial harm" to the child if the grandparent is not allowed visitation with the child and if the grandparent and the child have a significant existing relationship, though the "danger of substantial harm" can be found if an end of visitation with the grandparent is likely to cause "severe emotional harm" to the child.

    The thing to note here is that for grandparents who have not had a significant relationship with the child.... the statute will NOT help them establish visitation by court order.... because the court has not authority to order any visitation under such circumstances.

    Tennessee's legislature several years ago passed legislation the governor signed into law that would have allowed that in Tennessee, but in the case of Hawk v. Hawk, 855 S.W.2d 573 (Tenn 1993), Tennessee's Supreme Court ruled that it was unconstitutional for the state (or the state courts) to interfere with parenting decisions unless there was first clear evidence of a substantial risk of substantial harm to the child (or there was a divorce or a dispute between unmarried parents as to the child).  For much more on the Hawk case and several other Tennessee court decisions addressing this issue, click here.

    In light of that decision, the legislature tried again in 1997, making changes in Tennessee's grandparent visitation statute in an attempt to get the statute to pass constitutional scrutiny --  in other words to fix the problems and word it so the Tennessee appellate courts would apply it.

    The problem is that the members of the legislature seemingly were unable to grasp that under the decision in Hawk v. Hawk, there really is no way to fix a grandparent visitation statute to make it constitutional under Tennessee law.  And in the two cases set out in full below, Tennessee's appellate courts struck down the new versions of the grandparent visitation act as unconstitutional in the exact same manner as the earlier version.

    But those problems now seem to have been corrected.

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