                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    October 3, 2000 Session

         MITCHELL BLAIN BINGHAM v. TAMMYANNE BINGHAM

                     Appeal from the Circuit Court for Hamilton County
                         No. 93DR3365      Samuel H. Payne, Judge

                                  FILED NOVEMBER 16, 2000

                                 No. E1999-01768-COA-R3-CV


In this post-divorce case, Mitchell Blain Bingham filed a petition seeking the custody of his minor
child. The trial court, instead, awarded the child’s custody to the child’s paternal grandparents, who,
prior to the trial court’s order awarding them custody, were not parties to the action and had not
previously petitioned for custody. Both of the child’s parents appeal the award of custody to the
paternal grandparents. We vacate the trial court’s judgment and remand for further proceedings.

            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Vacated; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.

W. Troy McDougal, Collegedale, Tennessee, and Richard Ducote, New Orleans, Louisiana, for the
appellant, Tammyanne Bingham.

Sherry B. Paty, Chattanooga, Tennessee, for the appellee, Mitchell Blain Bingham.

Sandra J. Bott, Chattanooga, Tennessee, for the appellees, Dr. Sam Bingham and Mary Lynn
Bingham.

                                             OPINION

                                                  I.

        Mitchell Blain Bingham (“Father”) and Tammyanne Bingham (“Mother”) were divorced in
April, 1994. Pursuant to their marital dissolution agreement, Mother was awarded custody of the
parties’ only child, Austin Blain Bingham (DOB: September 8, 1990). In March, 1998, Mother and
the child moved from Chattanooga, Tennessee, to Kenner, Louisiana. Thereafter, Father filed this
petition to modify, alleging a material change of circumstances warranting a change in the child’s
custody.
      A hearing was held on June 22, 1999. The child’s paternal grandparents, Dr. Sam Bingham
and Mary Lynn Bingham (“the Binghams”), testified on behalf of their son. During their testimony,
they were asked by the trial court if they would be willing to assume custody of the child. The
Binghams indicated that they would accept custody.

         At the conclusion of the proof, the trial court announced its findings from the bench. While
not expressly finding either parent unfit, or otherwise finding the child to be at risk of substantial
harm if his custody was awarded to one of his parents, the trial court determined that it would be in
the child’s best interest if custody were awarded to the child’s paternal grandparents. An order was
later entered awarding them custody of Austin. The same order decreed that they were made parties
to this action.

         Mother appeals, arguing (1) that the trial court erred in removing custody from her; (2) that
the trial court erred in allowing the Binghams to intervene without proper notice to her; (3) that the
trial court erred in awarding custody of the child to the Binghams without proper notice to her; and
(4) that the trial court erred in not allowing the maternal grandparents to intervene or otherwise
present evidence regarding their ability to care for the child. Father also appeals the award of
custody to the Binghams. He further seeks an award of attorney’s fees.

                                                 II.

        In this non-jury case, our review is de novo upon the record with a presumption of correctness
as to the trial court’s factual findings. Tenn. R. App. P. 13(d). We must honor that presumption
unless the evidence preponderates otherwise. Id.; see also Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn. 1984). The trial court’s conclusions of law are reviewed de novo with no presumption of
correctnesss. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

                                                 III.

        In Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992), the Supreme Court found that the
Tennessee Constitution guarantees a right of privacy. This privacy right includes within its ambit
the right of parents to care for their children. Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993).
As the Supreme Court stated in Hawk:

               In light of this right to privacy, we believe that when no substantial
               harm threatens a child’s welfare, the state lacks a sufficiently
               compelling justification for the infringement on the fundamental right
               of parents to raise their children as they see fit.

Id. at 577. Because parents have a constitutionally-protected interest in caring for their children, a
court, in a custody dispute between a parent and a non-parent, may deprive a natural parent of
custody of a child only upon a finding, after notice required by due process, of substantial harm to
the child. In re Askew (Lewis v. Donoho), 993 S.W.2d 1, 4 (Tenn. 1999); In re Adoption of Female


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Child (Bond v. McKenzie), 896 S.W.2d 546, 548 (Tenn. 1995) (“Bond”). It is improper for a court
to award custody to a non-parent unless the court finds that neither parent is a suitable custodian.
Bush v. Bush, 684 S.W.2d 89, 94 (Tenn. Ct. App. 1984).

        The trial court in the instant case did not make a specific finding that an award of custody
of the child to Mother or Father would result in substantial harm to the child. Rather, the trial court
simply engaged in a “best interest” analysis and determined that an award of custody to the
Binghams would be in the best interest of the child. We find that this was error. Only after a finding
of substantial harm may a court engage in a “best interest of the child” analysis. Bond, 896 S.W.2d
at 548. Absent a finding of substantial harm, we find that the trial court erred in awarding custody
of the child to the paternal grandparents. In so holding, we express no opinion as to the fitness of
any of the parties to this litigation to care for the child.

        Upon remand, the trial court should first determine if there has been the requisite change of
circumstances to warrant a re-examination of the issue of custody. If such a change is found by the
trial court, it should go further and determine the comparative fitness of the child’s parents to serve
as the child’s custodian. Only if the trial court concludes that there is a risk of substantial harm to
the child regardless of which parent is awarded custody should it then go further and consider
awarding custody to the Binghams or any other “suitable person” contemplated by T.C.A. § 36-6-
101(a)(1) (Supp. 1999). We note that, upon remand, should any of the child’s grandparents,
including the Binghams, wish to seek custody of the child, they should be permitted to file an
appropriate pleading in the trial court seeking custody.

       Father also seeks attorney’s fees on this appeal. We do not find that such an award is
appropriate under the facts of this case.

        Finally, the Binghams have filed a motion to consider post-judgment facts pertaining to
Mother’s alleged failure to provide for the child. The facts which the motion seeks to raise are not
of the type that we can consider under Tenn. R. App. P. 14(a). Therefore, the Binghams’ motion is
hereby denied.

                                                 IV.

       The judgment of the trial court is vacated. This case is remanded for further proceedings
consistent with this opinion. Costs on appeal are taxed to the appellees, Dr. Sam Bingham and Mary
Lynn Bingham.



                                                       ___________________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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