The opinion
07/18/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 4, 2024
ALYSSIA ARNOLD ET AL. v. JAY WITT
Appeal from the Circuit Court for Lincoln County
No. 2023-CV-16 M. Wyatt Burk, Judge
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No. M2023-00803-COA-R3-JV
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This appeal arises out of a petition filed by Alyssia Arnold and Donavan
Levenhagen (collectively, “Appellants”) seeking visitation with three minor children,
Appellants’ half-siblings. The respondent moved to dismiss Appellants’ petition for
visitation due to a lack of standing. The Lincoln County Juvenile Court (“juvenile court”)
granted the motion to dismiss. Appellants appealed to the Lincoln County Circuit Court
(“circuit court”), which also granted a motion to dismiss. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which W. NEAL MCBRAYER
and CARMA DENNIS MCGEE, JJ., joined.
W. Garrett Honea, Fayetteville, Tennessee, for the appellants, Donovan Levenhagen and
Alyssia Arnold.
Jonathan C. Brown, Fayetteville, Tennessee, for the appellee, Jay Witt.
OPINION
BACKGROUND
Appellants are the adult half-siblings of three minor children. The minor children
are triplets born in 2008. Jay Witt (“Appellee”) is the father of the minor children. Lisa
Witt is the mother of Appellants and the minor children; Ms. Witt passed away on May 26,
2021. Appellee and Ms. Witt were married at the time of her death. Thereafter, on
December 24, 2022, Appellee remarried.
On January 19, 2023, Appellants filed a “Petition for Specific Visitation” with the
minor children in the juvenile court. In their petition, Appellants aver that they have had
an “extremely close bond” with the minor children for the entirety of their lives and that it
is in the best interests of the minor children to continue that bond. Specifically, they assert
that Appellee had recently cut off nearly all communication between Appellants and the
minor children and that he intended to unenroll the minor children from their current school
and relocate with the minor children to Savannah, Georgia.1 Appellants requested
visitation rights, including the right to unrestricted and unmonitored communications with
the minor children, the right to visit the minor children during certain school breaks, and
the right to be allowed to know of and attend the minor children’s school functions.
On February 14, 2023, Appellee filed a Motion to Dismiss Appellants’ petition due
to a lack of standing, lack of venue, and failure to state a claim upon which relief could be
granted. On March 1, 2023, the juvenile court granted Appellee’s Motion to Dismiss. The
juvenile court noted that “parental rights constitute a fundamental liberty interest” under
the Tennessee Constitution and that the right to privacy “fully protects the right of parents
to care for their children without unwarranted state intervention.” The juvenile court was
“not aware of any statute or case law [t]hat would allow [it] to compel [Appellee] to allow
‘sibling visitation.’” Therefore, it concluded, “[Appellants] lack standing, and the [juvenile
c]ourt has no option but to dismiss the case.”
On March 7, 2023, Appellants appealed this dismissal to the circuit court. Appellee
again filed a Motion to Dismiss. On May 2, the circuit court granted Appellee’s Motion to
Dismiss for the same reasons cited by the juvenile court, holding:
As our Supreme Court has elucidated, “the Tennessee Constitution protects
the fundamental right of natural parents to have the care and custody of their
children” and “requires that courts deciding initial custody disputes give
natural parents a presumption of ‘superior parental rights’ regarding the
custody of their children.” Blair[ v. Badenhope], 77 S.W.3d [137,] 141
[(Tenn. 2002)] (quoting In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999)). Persons
who are not a child’s biological parent do not possess the same
constitutionally protected interests as are possessed by a biological parent.
Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001). “[W]hen faced with
competing custody claims by a biological parent and a third party, the courts
must favor the biological parent.” Id.
1
We are unable to discern from the record when exactly Appellee relocated to Savannah, Georgia
with the minor children. In their petition, filed January 19, 2023, Appellants state that Appellee
was “planning on unenrolling the minor children from their current school and move to Savannah,
Georgia.” However, in his Motion to Dismiss filed February 14, 2023, Appellee stated that he had
already moved to Georgia.
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Quoting Blair, the circuit court explained, “the presumption of superior parental rights
recognizes that ‘parental rights are superior to the rights of others and continue without
interruption unless a biological parent consents to relinquish them, abandons his or her
child, or forfeits his or her parental rights by some conduct that substantially harms the
child.’” See Blair, 77 S.W.3d at 141 (quoting O’Daniel v. Messier, 905 S.W.2d 182, 186
(Tenn. Ct. App. 1995)). The circuit court noted that there was no evidence that Appellee
ever voluntarily relinquished his superior parental rights by transferring custody to a non-
parent and that the petition did not assert that keeping the minor children in Appellee’s
custody would result in any “substantial harm.” Therefore, it concluded:
Although standing for custody determinations is legislatively afforded to
certain classes of persons, (i.e. biological and adoptive parents, grandparents,
and stepparents of minor children) the Tennessee Legislature simply has not
afforded original standing to siblings of minor children. The undersigned is
not aware of any statute or case law that would allow the [circuit c]ourt to
compel [Appellee] to allow for “sibling visitation.” The undersigned does
appreciate the desires of [Appellants] to continue to foster a relationship with
their half-siblings; however, the [circuit c]ourt is simply without legislative
authority to mandate such, and must exercise appropriate judicial restraint by
denying such a well-intended request.
This timely appeal followed.
ISSUE
Appellants raise one issue on appeal, which they state as: Whether the trial court
erred by failing to consider the best interest of the minor children in making a ruling on
Appellee’s Motion to Dismiss.
STANDARD OF REVIEW
This case was resolved on a motion to dismiss. Our review is de novo upon the
record, accompanied by a presumption of correctness of the findings of fact of the trial
court, unless the preponderance of the 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)). A trial court’s conclusions of law are subject to a de
novo review 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)).
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DISCUSSION
As our Supreme Court has explained:
The law is now well-settled that the Tennessee Constitution protects the
fundamental right of natural parents to have the care and custody of their
children. See Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994); Hawk
v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). Through Article I, section 8
and its implicit recognition of parental privacy rights, our Constitution
requires that courts deciding initial custody disputes give natural parents a
presumption of “superior parental rights” regarding the custody of their
children. See In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999). Simply stated, this
presumption recognizes that “parental rights are superior to the rights
of others and continue without interruption unless a biological parent
consents to relinquish them, abandons his or her child, or forfeits his or
her parental rights by some conduct that substantially harms the child.”
See O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn.Ct.App. 1995).
Blair, 77 S.W.3d at 141 (emphasis added). The United States Supreme Court has also
observed parental autonomy as fundamental to the structure of our society, because the
family is “the institution by which we inculcate and pass down many of our most cherished
values, morals and cultur[e].” Davis v. Davis, 842 S.W.2d 588, 601 (Tenn. 1992) (quoting
Bellotti v. Baird, 443 U.S. 622, 634 (1979)).
Currently, there is a statute allowing courts to grant visitation rights to non-parents
even if the parents’ rights have not been terminated. Commonly referred to as the
“grandparent visitation statute,” Tennessee Code Annotated section 36-6-306(a) provides
grandparents standing to pursue court-ordered visitation with their minor grandchildren if
visitation is “opposed by the custodial parent or parents or custodian or if the grandparent
visitation has been severely reduced by the custodial parent or parents or custodian[.]”
Notably, however, siblings do not come within the class of people to whom that statute
allows courts to grant visitation. See Tenn. Code Ann. § 36-6-306(e); see also In re B.E.D.,
No. W2003-02026-COA-R3-JV, 2004 WL 572342, at *1 (Tenn. Ct. App. Mar. 22, 2004)
(“We find no authority granting an adult sibling visitation rights to a minor child.”). This
Court is constrained by the limited circumstances in which the General Assembly has
authorized Tennessee courts to grant visitation to non-parents, and those circumstances do
not exist in this case.
Section 36-6-106(a) of the Tennessee Code Annotated provides that “[i]n a suit for
annulment, divorce, separate maintenance, or in any other proceeding requiring the court
to make a custody determination regarding a minor child, the determination shall be made
on the basis of the best interest of the child.” Appellants argue on appeal that the circuit
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court erred by not considering the best interest factors set forth in this statute; however,
this case is not “a suit for annulment, divorce, separate maintenance, or [a] proceeding
requiring the court to make a custody determination” regarding the minor children as
custody and visitation are distinct issues under Tennessee law. See, e.g., Tenn. Code Ann.
§ 36-6-301 (“After making an award of custody, the court shall, upon request of the
noncustodial parent, grant such rights of visitation as will enable the child and the
noncustodial parent to maintain a parent-child relationship . . .”). Therefore, section
36-6-106(a) does not apply in this case.
Like the circuit court, this Court “does appreciate the desires of [Appellants] to
continue to foster a relationship with their half-siblings; however, th[is] Court is simply
without legislative authority to mandate such, and must exercise appropriate judicial
restraint by denying such a well-intended request.” Appellants lack standing, and this
Court has no power to grant them visitation rights with the minor children. Accordingly,
we affirm the judgment of the circuit court.
CONCLUSION
The judgment of the Lincoln County Circuit Court is hereby affirmed. The costs of
this appeal are taxed equally to the appellants, Alyssia Arnold and Donovan Levenhagen,
for which execution may issue if necessary.
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KRISTI M. DAVIS, JUDGE
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