Clark v. Evans
| Decision Date | 17 March 1989 |
| Citation | 778 S.W.2d 446 |
| Parties | James and Berna Dene CLARK, Petitioners/Appellees, v. Alyse EVANS, Respondent/Appellant. 778 S.W.2d 446 |
| Court | Tennessee Court of Appeals |
Walter L. Bailey, Memphis, Arkie Byrd, Little Rock, Ark., for petitioners/appellees.
William B. Seligstein, Memphis, for respondent/appellant.
This is an appeal from the order of the trial court granting visitation rights to grandparents. The parents of the child were divorced in October, 1984, and custody of the minor child was granted to the mother. On March 5, 1987, the paternal grandparents, James and Berna Dene Clark, filed a petition pursuant to T.C.A. Sec. 36-6-301 (Supp.1988) against the mother, Alyse L. Evans, for visitation rights with their minor granddaughter, Whitney Elizabeth Clark. The petition alleges that since the divorce, the grandparents have been allowed by the mother to visit their granddaughter only at the mother's discretion, and that the best interests of the child would be served if specific visitation periods are ordered by the court. The mother answered the petition and joined issue on the allegations therein. A hearing was held in September, 1987, and in May, 1988, the trial court entered the following order granting visitation:
This cause came on to be heard before the Honorable Charles O. McPherson, Judge of Division 2 of the Circuit Courts of Shelby County, Tennessee, on the Motion of Petitioners for grandparent visitation. The Petitioners, James and Berna Dene Clark, appeared in person and by their attorneys, Arkie Byrd and Walter Bailey. The defendant appeared in person and by her attorney, William B. Seligstein, and the Court having jurisdiction of the parties and the subject matter after hearing the evidence, finds:
1. That upon the testimony of the witnesses, it is the opinion of this Court that visitation with the grandparents, James and Berna Dene Clark, with the minor child, Whitney Elizabeth Clark, should be granted.
2. The Court is of the opinion that no substantial reason was given for denying Petitioners visitation with their grandchild.
3. That the Court orders and the grandparents at the hearing of this cause have so agreed to not subject the minor grandchild to any religious training or take her to any of their religious institutions during their visitation.
4. That the cost of this cause is adjudged against petitioner.
WHEREFORE, IT IS SO ORDERED BY THE COURT that Petitioners shall be entitled to visitation with their granddaughter for the reasons hereinabove stated.
Before the introduction of evidence there was considerable dialogue between the court and counsel for the respondent mother concerning the burden of proof. The court ruled that the respondent mother had the burden of proof to show that the grandparent visitation would not be in the best interests of the child. The parties virtually conceded that a primary problem is the difference in religion of the parties. The paternal grandparents are members of the Church of God, while mother and the child are Jewish. A great deal of the testimony at trial centered on whether the grandparents would expose the child to their religious beliefs and thus confuse the child in her development of religious values. The child was four years of age at the time of trial.
Because of the court's ruling concerning burden of proof, the respondent mother presented her proof first. She testified that she attempted at all times to work out reasonable arrangements for visitation with the grandparents as circumstances warranted. She states that prior to and after her marriage to the petitioners' son, the petitioners attempted to and did control her mind to the extent that she had no independent will and abandoned her family and friends. This effort on the part of the grandparents to impose their beliefs on others is her primary concern with their having visitation rights. She also noted that, although the petition does not specify, the visitation sought by the grandparents is in their home at Etowah, Tennessee, which is some 400 miles from Memphis. She asserts that the distance and time involved in the child's travel to Etowah for the visitation at her present age would be highly detrimental.
Mrs. Evans' father, Sanford Lichterman, testified that he had had a great deal of experience in cultism. While he had no first-hand knowledge of the influence and pressures which might have been placed on his daughter while she was associated with the Clark family, she did have a marked change in behavior which indicated a loss of independent will similar to that experienced by those controlled by cultism. This testimony was corroborated by the testimony of Mrs. Evans' mother, Rae Jean Lichterman.
The mother also presented the testimony of Dr. Richard L. Luscomb who testified to the importance of the stability of a young child's environment. He stated that when a child of four, in the process of developing values and beliefs, is given contradictory information based on different beliefs and personal attitudes, a problem is created in a child's development. Dr. Luscomb also testified that since the grandparents live approximately eight hours away and a major portion of a weekend visit by the child would be spent riding in an automobile, it would not be in the child's best interests to travel such a distance. His analysis was based on his belief that a child would become irritated on a long journey, in addition to the child's normal insecurity when displaced from the normal home environment. Dr. Luscomb admitted that it is healthy for children to have a relationship with their grandparents, but also testified that if a child had no previous relationship with his or her grandparents, there would be no impact on the child's development.
The petitioners' proof consisted of their individual testimony. The grandmother, Mrs. Clark, testified that she had had a good relationship with her daughter-in-law, Mrs. Evans, and that she had considered her like the daughter she never had. She also testified that she had not been able to see her granddaughter for the past sixteen months before the hearing, but that prior thereto she had a good relationship with the child. She further stated that when the child was visiting in their home previously the mother did not object to the child attending the grandparents' church, but that if this is objectionable to the mother at this time she is willing to abide by a court order not to expose the child to their religious beliefs. This testimony was corroborated by the testimony of the grandfather.
The issues for review by this Court are:
1. Whether the trial court erred by placing the burden of proof on respondent mother that the grandparent visitation would not be in the best interests of the minor child?
2. Whether the trial court erred in granting the petition for visitation?
We will consider these issues together.
At common law, grandparents did not have any legal right to visit with their grandchildren if such visitation was forbidden by the child's parents. See Note, Tennessee Statutory Visitation Rights of Grandparents and the Best Interest of the Child, 15 Mem.St.U.L.Rev. 635 (1985); Annotation, Grandparents' Visitation Rights, 90 A.L.R.3d 222, 225 (1979). The rationale behind this rule stemmed from the belief that parents have a right and duty to control their minor child and that any judicial enforcement of grandparent visitation rights would impede this parental authority. See, Grandparents' Visitation Rights, at 225-26; see generally 59 Am.Jur.2d Parent and Child, Sec. 10 (1987). Another rationale articulated by various courts is that the best interests of the child would not be served by forcing the child into the midst of a family conflict between the parents and grandparents. Grandparents' Visitation Rights, at 226; Tennessee Statutory Visitation Rights of Grandparents, at 636. Consequently, the parent's obligation to allow grandparent visitation has been categorized as a "moral" as opposed to a "legal" obligation. Id.
As a result of the competing interest of (1) the parents and their right to custody and control of their child, (2) the state's duty to protect the child and (3) the recognition that grandparents play a...
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