                    IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                 ______________________________________________

REGENIA ELLISON,

       Plaintiff-Appellee,                                                  FILED
                                                     Obion Chancery No. 20,453
Vs.                                                  C.A. No. 02A01-9803-CH-00054 4, 1998
                                                                         November

CHERRI ELLISON,                                                             Cecil Crowson, Jr.
                                                                            Appellate C ourt Clerk
      Defendant-Appellant.
____________________________________________________________________________

                FROM THE OBION COUNTY CHANCERY COURT
          THE HONORABLE WILLIAM MICHAEL MALOAN, CHANCELLOR




                                Lance E. Webb of Union City
                                       For Appellant

                     John Knox Walkup, Attorney General and Reporter
                       Ronald W. McNutt, Assistant Attorney General




                              REVERSED AND REMANDED

                                       Opinion filed:




                                                            W. FRANK CRAWFORD,
                                                            PRESIDING JUDGE, W.S.



CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER, JUDGE

       This appeal involves a petition for grandparent visitation filed by plaintiff, Regina

Ellison, paternal grandmother of Garrett Ellison and Ethan Wayne Ellison, minor children of

defendant, Cherri Ellison, and Terry Ellison, deceased. After an evidentiary hearing, the trial
court granted visitation. Cherri Ellison (Mother) has appealed and presents the following issues

for review as stated in her brief:

               1. Whether Tenn. Code Ann. § 36-6-306 is unconstitutional
               because it authorizes courts to order grandparent visitation upon
               a finding that such visitation is in the “best interest” of the child
               without first requiring the finding of a danger of substantial harm
               to the child.

               2. Whether the evidence preponderates against the trial court’s
               award of visitation rights to the appellee.

       T.C.A. § 36-6-306, passed by the legislature in 1997, provides as pertinent to our inquiry:

               36-6-306. Visitation rights of parents of deceased or divorced
               parents. - (a) If:
               (1) Either the father or mother of an unmarried minor child is
               deceased;
               (2) The child’s father and mother are divorced or legally
               separated;
               (3) The child’s father or mother has been missing for not less than
               six (6) months; or
               (4) The court of another state has ordered grandparent visitation;
               then, the parents of such deceased person or the parents of either
               of such divorced or separated persons or the parents of the
               missing person may be granted reasonable visitation rights to the
               child during its minority by a court of competent jurisdiction upon
               a finding that such visitation rights are in the best interests of the
               minor child, based on the factors in § 36-6-307(d)(2).

                                *               *               *

T.C.A. § 36-6-306 (Supp. 1998).

        The factors referred to above in T.C.A. § 36-6-307(d)(2) are:

                (2) In determining the best interest of the child under this section,
                the court shall consider a number of factors, including but not
                limited to the following:
                (A) The length and quality of the prior relationship between the
                grandparent and the child;
                (B) The existing emotional ties of the child to the grandparent;
                (C) The preference of the child if the child is determined to be of
                sufficient maturity to express a preference;
                (D) The effect of hostility between the grandparent and the parent
                on the child manifested before the child, and the willingness of
                the grandparent, except in case of abuse, to encourage a close
                relationship between the child and the parent(s) or guardian(s) of
                the child;
                (E) The good faith of the grandparent in filing the petition;
                (F) If the parents are divorced or separated, the time-sharing
                arrangement that exists between the parents with respect to the
                child; and
                (G) If one (1) parent is deceased or missing, the fact that the
                grandparents requesting visitation are the parents of the deceased
                or missing person.

T.C.A. § 36-6-307(d)(2) (Supp. 1998).

                                                 2
        In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), our Supreme Court considered a

constitutional challenge to T.C.A. § 36-6-101, a predecessor to the present grandparent visitation

statute, that provided for “reasonable visitation” with grandparents if it is “in the best interest of

the minor child.” The issue involved the constitutionality of the statute as it applies to the

decision of married parents to deny paternal grandparents visitation with their grandchildren.

The Court held that:

                Article I, Section 8 of the Tennessee Constitution protects the
                privacy interest of these parents in their child-rearing decisions,
                so long as their decisions do not substantially endanger the
                welfare of their children. Absent some harm to the child, we find
                that the state lacks a sufficiently compelling justification for
                interfering with this fundamental right. When applied to married
                parents who have maintained continuous custody of their children
                and have acted as fit parents, we conclude that court interference
                pursuant to T.C.A. § 36-6-301 constitutes an unconstitutional
                invasion of privacy rights under the Tennessee Constitution.

Id. at 582.

        In Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), the Supreme Court followed

its decision in Hawk and applied its previous holding to a case where paternal grandparents were

seeking visitation after their son’s parental rights had been terminated. The child’s mother had

remarried, and her second husband had adopted the child. The Court noted that in Hawk the

need to protect the child from a substantial danger or harm was a compelling state interest

sufficient to overrule parents’ decisions. The Court then defined the issue as “whether the child

in this case is exposed to a substantial danger of harm, which justifies the intervention of the

Court into the parents’ child-rearing decisions.” Id. at 684-85. The Court held:

                Since the record shows that the threshold issue - danger of
                substantial harm - has not been established, the appellant and the
                adoptive father are entitled to constitutional protection of their
                parental rights.

Id. at 685.

        In Floyd v. McNeely, No. 02A01-9408-CH-007, 1995 WL 390954 (Tenn. App. W.S.,

July 5, 1995), this Court considered a grandparent visitation case with facts quite similar to the

case at bar.    The primary issue before the Court was whether T.C.A. § 36-6-301 was

unconstitutional as applicable to the facts of that case. The Court ruled:

                       In keeping with the Hawk and Simmons decisions, this
                court may only intervene with McNeely’s decision to prevent her
                children from reestablishing a relationship with their paternal

                                                  3
                grandmother if the record before us indicates that the children are
                threatened with a substantial danger of harm. Our review of this
                record does not lead us to this conclusion. Thus, we find that it
                is within McNeely’s fundamental right as a parent to prevent
                contact between her children and their grandmother.

Id. at *4.

        In Hilliard v. Hilliard, No. 02A01-9609-CH-00230, 1997 WL 61510 (Tenn. App. W.S.,

Feb. 14, 1997) this Court again considered the question of grandparent visitation in a somewhat

different circumstance. At the time the mother and father were divorced, temporary custody of

the minor child was awarded to the maternal grandmother, with whom the mother was living at

the time. The mother later moved out of the state to live with her present husband, and the father

filed a petition for modification of the decree to award him custody of the child. The father was

awarded custody of the child, and the maternal grandmother was granted visitation with the child

every other weekend. The father appealed from that part of the order allowing the grandmother

visitation. The Court, following the decisions in Hawk, Simmons, and Floyd, remanded the case

to the trial court for further proceedings to make a threshold determination of whether there was

substantial danger of harm to the child if there was a cessation of the relationship between the

child and the maternal grandmother. Id. at *4. The Court noted that the underlying holding in

all of the cases relied upon is that parents possess a constitutional right of privacy in parenting

decisions not subject to interference from the state absent a showing of substantial harm for the

child. Id. at *3.

        The statutes under consideration in the previous cases referred to, and the statute under

consideration in the case at bar, are essentially the same inasmuch as they both provide for

reasonable visitation rights upon a finding that the visitation rights are in the best interest of the

minor child. Our Supreme Court in Hawk and in Simmons determined that there must be an

initial showing of harm to a child before the Court may intervene to determine the best interest

of the child. The Court in Hawk specifically held:

                When applied to married parents who have maintained
                continuous custody of their children and have acted as fit parents,
                we conclude that court interference pursuant to T.C.A. § 36-6-301
                constitutes an unconstitutional invasion of privacy rights under
                the Tennessee Constitution.

855 S.W.2d at 582.

        The cases subsequent to Hawk indicate that there is no real difference between the rights

                                                  4
of a single parent, and both parents, under these circumstances. In view of the almost identical

language of the previous statute and the present statute allowing visitation if in the best interest

of the minor child, we are compelled to follow the holding in Hawk. Therefore, we hold that the

language of T.C.A. § 36-6-306, allowing reasonable visitation rights upon a finding of the best

interest of the minor child, “constitutes an unconstitutional invasion of privacy rights under the

Tennessee Constitution.”1

       The judgment of the trial court is reversed, and the case is remanded to the trial court for

such further proceedings as may be necessary. Costs of the appeal are assessed against the

appellee. The second issue is pretermitted.

                                                       _________________________________
                                                       W. FRANK CRAWFORD,
                                                       PRESIDING JUDGE, W.S.

CONCUR:


____________________________________
ALAN E. HIGHERS, JUDGE

____________________________________
DAVID R. FARMER, JUDGE




       1
         The trial court voiced the same opinion but, because the Attorney General was not
properly before the Court, declined to rule on the constitutionality of the statute.

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