                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                     September 28, 2011 Session

                    NEAL LOVLACE and NORMA JEAN LOVLACE
                                      v.
                    TIMOTHY KEVIN COPLEY AND BETH COPLEY

                Direct Appeal from the Chancery Court for Hickman County
                          No. 06-128-C    Robbie T. Beal, Judge


                    No. M2011-00170-COA-R3-CV - Filed February 3, 2012


                  SEPARATE CONCURRENCE AND PARTIAL DISSENT
                         _________________________________

ALAN E. HIGHERS, P.J., concurring in part and dissenting in part.


        I concur with the result reached in this case, but I disagree with some of the reasoning and
therefore write separately.

Because the procedure in this case is difficult to follow, I offer a brief time-line of the events of
particular significance.

       1. Minor child born on September 4, 2002, to Jerry and Beth Rochelle.
       2. Larry Rochelle and wife (later Mrs. Lovlace) were adoptive parents of Jerry
       Rochelle.1
       3. Jerry and Beth Rochelle were divorced on April 20, 2004, and Beth married
       Timothy Kevin Copley on January 15, 2005.


       1
           Testimony of Mrs. Lovlace, clarifying adoptive status of the biological father of the minor child:

       Q.         All right. So now, when that - - when he withdrew his consent, when David Rochelle, your
                  son - - and he was adopted, too, wasn’t he?
       A.         He was.
       Q.         By you?
       A.         Yes.
       Q.         So you understand as a mother the love one can have for an adopted child?
       A.         Yes.
        4. Mr. Copley attempted to adopt the minor child. Jerry Rochelle, the biological
        father, consented but then withdrew his consent in January 2006.
        5. Mrs. Copley terminated contact between the Lovlaces and the minor child in
        February 2006.
        6. The Lovlaces filed a petition for grandparent visitation on April 24, 2006.
        7. An “Agreed Order” was entered on May 15, 2006, providing for grandparent
        visitation.
        8. Mr. Copley adopted the minor child on March 24, 2009. The order provided that
        the adoption did not alter or modify grandparent visitation rights.
        9. The Lovlaces filed a petition for contempt and to modify their visitation order on
        March 9, 2009.
        10. The Copleys sought to suspend or terminate the Lovlaces’ visitation with the
        minor child.

There are numerous other proceedings and events in the record, but these are the primary facts
leading to this controversy.

Although there are issues pertaining to contempt and attorney fees, the underlying issue is whether
grandparent visitation should be permitted and the standard to be applied in a petition to modify by
the grandparents. I agree with Judge Stafford’s disposition of the issues pertaining to contempt and
attorney fees.

Judge Stafford finds the Lovlaces are grandparents for purposes of the Grandparent Visitation
Statute. I agree.

Judge Stafford finds that the “Agreed Order” is valid notwithstanding the subsequent adoption of
the minor child. I agree.

Judge Stafford vacates and remands the matter for further consideration. I agree.

Judge Stafford holds that the same standard applies to the grandparents’ petition to modify that
would apply in an initial proceeding to grant visitation to the grandparents, namely, they must again
show substantial harm to the child for failure to grant visitation. I disagree. They have crossed that
threshold and they are not required to cross it over and over each time they seek to modify visitation.

Judge Stafford states: “Because Tennessee has a statute that specifically allows for grandparent
visitation and provides us the standard to be used in making that determination, we conclude that the
statute does not limit that standard only to the initial visitation determination; we concede that there
is no statutory standard for a subsequent request to modify grandparent visitation.” (Emphasis
supplied). This statement, of course, is inconsistent. If there is “no statutory standard” for a petition
to modify, then it is fruitless to argue that the statute “does not limit that standard only to the initial
visitation determination.” If the statute does not speak to it, the statute does not speak to it.



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The case of Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002), is instructive here. Although it dealt
with custody involving a parent and non-parent, and our case involves visitation involving a parent
and non-parent, the Supreme Court clearly makes a distinction between the standard applied in an
initial determination and a modification. The same common-sense determination should apply here.

To hold that grandparents who have already crossed the “substantial harm” threshold (whether by
consent or otherwise) must cross it again each time they seek to modify their visitation would impose
a chilling effect on their effort to maintain a relationship with the minor child.

The court should require a showing of material change of circumstances in order to modify, along
with a consideration of the best interest of the child.




                                                      ALAN E. HIGHERS, P.J., W.S.




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