        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                                 AT JACKSON
            _______________________________________________________

                                    )
JOHNNY GLENN HILLIARD,              )     Weakley County Chancery Court
                                    )     No. 13598
   Plaintiff/Appellant.             )
                                    )
VS.                                 )     C. A. NO. 02A01-9609-CH-00230
                                    )
MISTY LYNN HILLIARD                 )
And TERRY MINTON,                   )
                                    )
   Defendants/Appellees.            )
                                    )
______________________________________________________________________________

From the Chancery Court of Weakley County at Dresden.
Honorable William Michael Maloan, Chancellor            FILED
                                                         Feb. 12, 1997

James H. Bradberry,                                     Cecil Crowson, Jr.
BRADBERRY, CROWE & MacLEOD, Dresden, Tennessee           Appellate Court Clerk
Attorney for Plaintiff/Appellant.



Langdon S. Unger, Jr., Martin, Tennessee
Attorney for Defendants/Appellees.




OPINION FILED:

REMANDED




                                           FARMER, J.



CRAWFORD, P.J., W.S. : (Concurs)
LILLARD, J. : (Concurs)
               Johnny Glenn Hilliard (Father) appeals from the order of the trial court granting

visitation rights to his son’s maternal grandmother. Father and Misty Lynn Hilliard (now Schrems)

(Mother) married in 1992. Alexander Glenn Hilliard (Alex) was born in May 1993. The parents

divorced in January, 1995 and temporary custody1 was awarded to Terry Minton, the maternal

grandmother. At that time, Mother was living with her mother, Terry Minton. Mother currently

resides in Florida with her present husband.



                Father subsequently filed a petition for a modification of the decree asking that he be

awarded custody of Alex. By order of May 6, 1996, Father was awarded custody of Alex and the

maternal grandmother, Terry Minton, was granted visitation with the child every other weekend from

Friday at 5:00 p.m. until Sunday at 5:00 p.m. It is from this portion of that order that Father appeals.



               Father states the issue on appeal as “[w]hether the maternal grandmother is entitled

to visitation with a three-year-old grandson where the grandson is in the custody of the father and

the mother has relocated to another state.” Father relies upon the authority of Hawk v. Hawk, 855

S.W.2d 573 (Tenn. 1993); Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) and Floyd v.

McNeely, No. 02A01-9408-CH-00187 (Tenn. App. July 5, 1995).                    Hawk concluded that

“Tennessee’s historically strong protection of parental rights and the reasoning of federal

constitutional cases convince us that parental rights constitute a fundamental liberty interest under

Article I, Section 8 of the Tennessee Constitution.” Hawk held T.C.A. § 36-6-3012 to be an

unconstitutional invasion of parents’ privacy rights as afforded under the Tennessee Constitution

when applied to the facts presented. That case involved a petition for grandparental visitation filed

by the paternal grandparents against married parents who had maintained continuous custody of their

children and whose fitness as parents went unchallenged. Hawk, 855 S.W.2d at 577, 582. Hawk

determined that the parents possessed a constitutional right of privacy in parenting decisions not

subject to interference from the state absent a showing of “substantial harm” to a child’s welfare.


       1
         Custody orders are neither temporary nor permanent in that they remain under the control
of the court and can be changed upon a proper showing of material change of circumstances.
Dept. of Human Services v. Gouvitsa, 735 S.W.2d 452 (Tenn. App. 1987).
       2
        Grandparents’ visitation rights. -- (a) The natural or legal grandparents of an
unmarried minor child may be granted reasonable visitation rights to the child during such
child’s minority by a court of competent jurisdiction upon a finding that such visitation rights
would be in the best interests of the minor child. . . . The current statute is T.C.A. § 36-6-302(a).
Id. at 577. Hawk reasoned that there was no compelling state interest justifying interference with

such right of parents absent this showing. Id. at 582. Hawk stated that without a showing of

substantial harm to the child, “a court may not constitutionally impose its own subjective notions of

the ‘best interests of the child’ when an intact, nuclear family with fit, married parents is involved.”

Id. at 579. To this end, Hawk declined to proceed with a “best interests of the child” analysis until

and after the required showing of harm which the court viewed as the “sole protection that parents

have against pervasive state interference in the parenting process.” Id. at 580-81. Moreover, Hawk,

refused to assume that the grandparent-grandchild relationship always proves beneficial to the child

as such assumption, “overlooks the necessity of a threshold finding of harm before the state can

intervene in the parent-child relationship.” Id. at 581.



                Simmons v. Simmons involved a mother and adoptive father of a minor child who

sought to terminate the court ordered visitation privileges of the child’s paternal grandparents. The

court recognized that Hawk was distinguishable in certain respects, but reasoned that “the

relationship between an adoptive parent and child is no less sacred than the relationship between a

natural parent and child” and is therefore deserving of the “same legal protection.” Simmons, 900

S.W.2d at 685. Simmons concluded that the record before it contained no evidence that a substantial

danger of harm threatened the child and thus found no compelling state interest justifying court

intrusion upon the natural mother’s and adoptive father’s rights as parents to preclude a relationship

between their child and the paternal grandparents. Id. at 685.



                In Floyd v. McNeely the father died shortly after he and the mother were divorced.

A petition was brought by the paternal grandmother seeking visitation with her grandchildren. She

testified that she had had a close relationship with the children from their birth until the death of their

father. This Court said:



                In view of the reasonings extended by our supreme court in Simmons
                and Hawk, we are convinced that McNeely’s right to parent her
                children as she sees fit, including a decision regarding a relationship
                between them and their grandmother, is no less greater than the right
                afforded to the married natural parents under Hawk. We conclude
                that the rights afforded to the parents in Hawk extend equally to
                McNeely despite the death of her children’s father and her subsequent
                remarriage. To this end, we do not view the breakup of the nuclear
                family, in and of itself, to constitute a substantial harm to a child
               sufficient to justify state interference with a fit parent’s decision to
               preclude a relationship between that child and his/her grandparents.



Floyd, slip op. at 5. Citing Hawk and Simmons, this court reasoned that there was no justification

for state interference because there was no evidence of a substantial danger of harm to the children.

Id. at 5.



               This issue was more recently addressed by this Court in McVay v. Blen, No. 02A01-

9508-JV-00183 (Tenn. App. December 19, 1996), wherein the paternal grandparents filed a petition

for visitation which was granted in the court below. In that case the parents were never married and,

in reversing the trial court, this Court stated that “mother’s unmarried status does not diminish her

fundamental privacy interest in raising Lauren. Therefore, under Hawk, the trial court could not

order visitation with Grandparents in the absence of a threshold finding that Mother was unfit or that

the circumstances presented a substantial danger of harm.” McVay, slip op. at 4.



               Appellee relies upon an unreported case from the Middle Section of this Court,

Vanderpool v. Boone, No. 01-A-01-9508-CH-00358 (Tenn. App. March 27, 1996), wherein the

grandmother had been awarded visitation in the divorce decree. The paternal grandmother filed a

petition against the mother for enforcement of her visitation rights and for contempt. The trial court

found there had been no material change of circumstances to justify a change in the visitation

provisions and the appellate court affirmed. The court noted in its opinion that the supreme court

has set constitutional limits on the authority of trial courts to order grandparent visitation, even

where the court may believe that such visitation is in the best interest of the child. The court noted

however, that the court has not declared T.C.A. § 36-6-302 to be unconstitutional, therefore trial

courts may still issue and enforce grandparent visitation orders under appropriate circumstances.

Vanderpool, slip op. at 6. The court went on to say that:



                       The present case does not involve the one situation discussed
               by the Supreme Court (significant danger of harm to the child) where
               the courts are specifically authorized to ignore the preferences of the
               parents and issue a visitation order deemed to be in the best interests
               of the child. However, the order Mrs. Vanderpool now objects to
               differs from those reversed by the Supreme Court in the above-cited
               cases, in that she herself suggested that visitation be granted to Mrs.
               Seat, while the visitation orders granted by the trial courts in the
               Hawk and Simmons cases were issued over the objections of the
               parents.



Id. at 6-7. Unlike the custodial parent in Vanderpool, nothing in the record in the present case

reveals that the father suggested that visitation be granted to Mrs. Minton in the divorce decree. His

appeal from the trial court’s award of visitation belies that. The Vanderpool court further noted that

visitation orders remain within the control of the court and are subject to modification upon

appropriate showing of change of circumstances.



               However, in the present case the trial court was apparently satisfied that Father had

shown sufficient change of circumstances to support a change of custody from the maternal

grandmother to Father. That ruling is not appealed. Unlike Vanderpool, the present case does not

involve a modification of grandmother’s visitation, but rather a modification of custody. Although

the grandmother had custody, her visitation was first ordered in the order which is the subject of this

appeal, the change of custody from her to the father. This case does differ from the cases previously

cited in that Hawk, Simmons, Floyd and McVay were all petitions brought by grandparents seeking

visitation pursuant to T.C.A. § 36-6-301. Nevertheless, we believe that the underlying holding in

those cases, that parents possess a constitutional right of privacy in parenting decisions not subject

to interference from the state absent a showing of substantial harm to the child, is applicable to this

case. The best interest of the child is not determined until and after the required showing of harm.

As we interpret the prior holdings, once Father is granted custody, he has the right to decide whether

the grandparents may have visitation. Courts will not interfere absent a threshold finding of a danger

of substantial harm to the child.



               As heretofore noted, Alex was born March 25, 1993. During the pendency of the

parents’ divorce, temporary custody was awarded to the mother “in the home of the maternal

grandmother,” Mrs. Terry Minton, with reasonable visitation to the father. The final decree of

divorce awarded temporary custody of Alex to Mrs. Minton, who was thirty-seven years old, with

visitation rights to the father. No visitation to the mother was provided for in this order.



               The statement of the evidence on the hearing on Father’s petition to modify the decree
to award him sole custody of Alex indicates that Father and Mrs. Minton had some disagreements

over his visitation with Alex as well as payment of child support. The undisputed testimony from

Mrs. Minton was that Alex had lived in her home since infancy, that she had cared for him and that

little was done for Alex by his mother. The mother, who has remarried and moved to Florida, was

not awarded any visitation with Alex.3



                  The record before us does not indicate whether the trial court made any determination

as to whether a denial of visitation to Mrs. Minton with Alex would result in a substantial danger of

harm to him. The record does indicate that Mrs. Minton has, in effect, been Alex’s mother since

infancy.



                  We believe that this is an appropriate case to be remanded to the trial court pursuant

to T.C.A. § 27-3-128 for the trial court to make a threshold determination of whether cessation of

the relationship between Alex and Mrs. Minton presents a substantial danger of harm to Alex and,

if such harm is found, to determine whether visitation with Mrs. Minton is in Alex’s best interest.



                  Therefore, this case is remanded to the trial court for further proceedings consistent

with this opinion. The costs of this appeal are taxed one-half to Johnny Glenn Hilliard and one-half

to Terry Minton, for which execution may issue if necessary.



                                                         ______________________________
                                                         FARMER, J.



______________________________
CRAWFORD, P.J., W.S. (Concurs)


______________________________
LILLARD, J. (Concurs)




       3
           The mother did not appeal the trial court’s decision not to award her visitation rights.
