The relationship between a grandparent and grandchild can be one of the strongest, most important relationships a child has. Increasingly, Tennessee grandparents are being asked to raise their grandchildren when the parents cannot. On the other hand, some grandparents are forced to live in fear of losing their grandchildren by parents who like to withhold visits as a weapon.
Luckily, Tennessee law is very protective of the rights of grandparents. So, what can you do if you’re worried about your grandchildren? You have plenty of options:
Seek Visitation With Your Grandchild
The right to visit your grandchild is not a given. According to a case called Troxel v. Granville, a grandparent’s time cannot interfere with parental time. In other words, parents have a Constitutional right to 100% of the time with their children. That generally means that, as a starting point, grandparents have zero right to time with their grandchildren.
The Troxel v. Granville holding has been eroded in recent years. This comes as courts are called upon to decide what happens to children faced with the challenges of unwed parents, the effects of the opioid crisis, and general economic conditions that have destabilized the traditional family unit of mother, father, and children.
If a parent objects to working with a grandparent so they can see their children, a grandparent can petition the Court for specified rights. To get those rights, the grandparent must initially show the following things:
- The child’s parent is deceased
- OR the child’s parents are divorced, separated, or were never married
- OR the child’s parent has been missing for at least six months
- OR a court in another state has ordered grandparent visitation
- OR the child has lived in the grandparent’s home for at least 12 months before being removed by the parents
- OR the child and the grandparent have maintained a significant bond for at least 12 months
- AND that the child will likely suffer severe emotional harm if the relationship with the grandparent is not allowed to continue through visitation.
To show emotional harm, the petitioning grandparent can show that s/he was the primary caregiver for at least six months. Or they can show that the child is otherwise at risk of substantial harm or severe emotional harm.
Even if the petitioning grandparent proves all these factors, the Court is restricted in what visitation can be ordered.
Typically, the Court is only allowed to order the minimum necessary to prevent harm. If a visitation routine was observed before, the Court may use that as a guideline for ordering future visits.
Seek Guardianship of Your Grandchild
If your grandchild’s parents are temporarily unable to care for your grandchild and they acknowledge it, you can pursue temporary guardianship. Becoming a legal guardian gives you the right (and responsibility) to provide for your grandchildren’s needs, such as school and medical treatment. Guardianship agreements are only available if the parents agree. And parents can revoke guardianship for any reason. Especially if substance abuse and/or addiction are involved, you probably need something stronger than a guardianship agreement.
Seek Custody of Your Grandchild
When parents are unable or unwilling to properly care for their children, grandparents can get custody. To get custody of your grandchildren, you must file a petition in Juvenile Court alleging that your grandchild’s parents are abusing or neglecting your grandchild, that your grandchild is in harm’s way in their care, and that you are prepared to raise your grandchild for the foreseeable future.
Obtaining custody is more difficult, legally and emotionally, than obtaining guardianship. Legally, you must prove exactly what the parents have done to abuse or neglect your grandchild by clear and convincing evidence. If you are wondering what legally constitutes child neglect, click here.
Emotionally, you have to be prepared for the fallout in your relationship with your own child. At least initially, parents will likely be very angry at you for trying to remove your grandchild from them. That being said, some parents do come around, and use this as an opportunity to get their act together without the additional stress of raising children. If so, there may come a day where you can help them regain custody. Just make sure that when this time comes, you legally transfer custody through the court system. Trying to transfer custody informally could result in you being accused of abuse or neglect.
You also need to be prepared to raise your grandchild in the long term. While we all hope that parents will recover from the circumstances that lead to your grandchild’s removal, the reality is that many never do. Before you decide whether to seek custody of your grandchild, think about whether you are physically, financially, and emotionally prepared to raise a child again. If you aren’t ready to “start over” in this way, it may not be wise to pursue custody of your grandchild.
To learn about seeking custody in an emergency, click here.
Adopt Your Grandchild
Adoption is rarely the first step when dealing with an incompetent or addicted parent. In most cases, if you are worried about your grandchildren’s safety, you should first seek custody. However, if you already have custody, or if you’ve been the real parent for your grandchild for a long time, it may be time to pursue an adoption. Adoption has many benefits over simple custody. Adoption is permanent, and it comes with the same legal rights and responsibilities as biological parenthood. Once an adoption is finalized, you don’t have to worry about a biological parent coming back at some later time to re-take custody of your grandchild from you. Adoption also has important implications for things like social security benefits and estate planning that you should discuss with your attorney. On the other hand, adoption is legally difficult to obtain. Adoption requires that you permanently terminate the rights of both of your grandchild’s parents. To learn more about the grounds for termination of parental rights, click here.
How to Help Your Grandchild if You Can’t Personally Raise Them
It’s a terrible situation: You know that your grandchild is not safe with their parents, but you also know that you are not able to raise them. What can you do? If you know someone who is able and willing to raise your grandchild, whether that be a grandparent or other relative, you can support their petition for custody by being a witness for them in court. Your insight may convince the judge to quickly remove your grandchild from a dangerous situation, and by supporting a specific person’s petition, you at least know what will happen to your grandchild once they are removed.
The other option is to call the Tennessee Department of Children’s Services (DCS) and tell them what is happening. If DCS decides to intervene, they will first try to locate relatives willing to take the child. If no one is available, they will place the child in foster care. Making a call to DCS is never an easy decision, as it severely reduces how much control you have over your grandchild’s destiny. However, if your grandchild is in a dangerous situation, it may be the best way to help them. If your grandchild is placed in foster care, ask their caseworker if you may send them letters, packages, or potentially even visit with them. This allows your grandchild to keep connections with family while in foster care.
These are tough decisions. You should not make them alone. If you are worried about your grandchild, give us a call at 865-637-6550. We are here to help.
This blog was written by Held Law Firm’s juvenile and adoption attorney, Chelsea Price.
