                       IN THE COURT OF APPEALS OF TENNESSEE
                            WESTERN SECTION AT JACKSON
                                                                     FILED
                                                                      Dec. 19, 1996

                                                                     Cecil Crowson, Jr.
JERRELL McVAY and                     )                               Appellate Court Clerk
CYNTHIA MARIE McVAY,                  )
                                      )
       Petitioners/Appellees,         )      Shelby Juvenile No. 119707
                                      )
STATE OF TENNESSEE,                   )      Appeal No. 02A01-9508-JV-00183
                                      )
       Intervenor,                    )
                                      )
vs.                                   )
                                      )
SHARON BLEN, Custodial parent of      )
LAUREN NICOLE McVAY, a minor          )
                                      )
       Respondent/Appellant.          )



      APPEAL FROM THE JUVENILE COURT OF MEMPHIS AND SHELBY COUNTY
                         AT MEMPHIS, TENNESSEE


                      THE HONORABLE KENNETH A. TURNER, JUDGE



For the Petitioners/Appellees:        For the Defendant/Appellant:

Robert Y. Jarvis                      Stevan L. Black
Bartlett, Tennessee                   Kimberly Harris Jordan
                                      Memphis, Tennessee

For the Intervenor:

Charles W. Burson
James H. Tucker, Jr.
Nashville, Tennessee


                                      REVERSED


                                      HOLLY KIRBY LILLARD, J.

CONCUR:


ALAN E. HIGHERS, J.


HEWITT P. TOMLIN, JR., SR. J.
                                              OPINION

        This case arises under the Grandparents’ Visitation Act. The Petitioners/Appellees, Jerrell

McVay and Cynthia Marie McVay (“Grandparents”), filed a petition with the juvenile court for

court-ordered visitation with their paternal grandchild, Lauren Nicole McVay. The Juvenile Court

awarded visitation to the Grandparents, pursuant to the Grandparents’ Visitation Act. The child’s

mother, Respondent/Appellant Sharon Blen (“Mother”), appeals the trial court’s decision. We

reverse.

        Mother met Lauren’s father, Jeffrey McVay (“Father”) while they were students in college.

As a result of their relationship, Mother gave birth to their child, Lauren. Mother and Father never

married; however, Lauren was legitimated. After awarding Mother custody, the juvenile court

ordered Father to pay child support and granted him visitation rights. Father exercised his visitation

rights only sporadically, and the record reflects that he had not seen the child in well over a year at

the time of trial in this cause.

        Despite their son’s lack of involvement with Lauren, Grandparents wanted to develop a

relationship with her. Mother initially encouraged such a relationship, and Grandparents saw Lauren

regularly until she was approximately six years old. Mother testified that she and Grandparents then

began to disagree about issues related to Lauren’s upbringing, such as medical treatment, religious

training, and discipline. Finally, because of these disagreements, Mother determined that Lauren

should no longer visit Grandparents. Grandparents then petitioned the juvenile court for court-

ordered visitation. After a hearing, the juvenile court referee found that visitation with Grandparents

would be in the best interest of the child. This finding was confirmed by the juvenile court judge

and Grandparents were awarded visitation. From this order, Mother now appeals.

        On appeal, Mother argues that the Grandparents’ Visitation Act is unconstitutional as applied

to the facts of this case, because it violates her right to privacy to raise her child without unwarranted

State intervention. In the alternative, Mother contends that the trial court erred in finding that

grandparent visitation would be in the child’s best interest and in awarding Grandparents visitation

during Shabbiath services on Friday evenings and during the Christmas holiday.

        Our review of the trial court’s findings of fact is de novo upon the record and is accompanied

by a presumption of correctness of the factual findings unless the preponderance of the evidence is

otherwise. Tenn. R. App. P. 13(d). On questions of law, of course, our review is de novo with no

presumption of correctness. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
       The Grandparents’ Visitation Act provides as follows:

       (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 provisions of this subsection shall not apply in the
       case of any child who has been adopted by any person other than a relative of the
       child or a stepparent of the child.

Tenn. Code Ann. § 36-6-302 (1996).1          The constitutionality of the Act was addressed by the

Tennessee Supreme Court in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). In Hawk, the trial court

had denied the paternal grandparents’ petition for court-ordered visitation with their grandchildren.

Id. at 575. This was affirmed by the Court of Appeals. Id. The Tennessee Supreme Court examined

Tennessee case law regarding the right to privacy guaranteed under Article 1, Section 8 of the

Tennessee Constitution and determined that “the right of parents to care for their children without

unwarranted state intervention” is encompassed within the right to privacy. Id. at 579. In light of

this, the Court held that the State cannot interfere with the parent-child relationship in an “intact,

nuclear family with fit, married parents” and determine what is in the best interest of the child unless

the court first makes a threshold finding that there is a substantial danger of harm to the child. Id.

       Applying these principles, the Court in Hawk noted that the trial court did not find that the

parents were unfit or that there was a substantial danger of harm to the child. Id. at 576, 582.

Without such a threshold finding, the Court reasoned that “the state lack[ed] a sufficiently

compelling justification for interfering with [the parents’] fundamental right.” Id. at 582. It

concluded that the Grandparents’ Visitation Act was unconstitutional as applied to the facts in that

case and reversed the decision granting the grandparents’ petition for visitation. Id. Thus, under

Hawk, the trial court must first ascertain whether the parents are unfit or whether the circumstances

demonstrate a substantial danger of harm to the child. Only after this initial finding may the trial

court go on to determine whether grandparent visitation is in the best interest of the child.

        Subsequent cases have applied these principles to different factual circumstances. In

Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), the trial court awarded the natural mother a

divorce from the father and custody of their child. Id. The order of divorce also included visitation

to the paternal grandparents. Id. The mother later remarried, and her new husband adopted the




       1
          The Grandparents’ Visitation Act was formerly codified at Tenn. Code Ann. § 36-6-301
but was transferred to § 36-6-302 by the legislature in 1995.

                                                   2
child. Id. After the mother denied visitation to the grandparents, they moved that she be held in

contempt for violating the court-ordered visitation. Id. at 682-83. The mother countered by

petitioning to terminate the grandparents’ visitation privileges. Id. at 683. The trial court denied

the mother’s petition, and the Court of Appeals affirmed. Id. at 682-83. The mother then appealed

to the Tennessee Supreme Court. Id.

        The grandparents in Simmons argued that Hawk applied only to an intact family with

married, natural parents whose fitness was unchallenged. Id. at 684. They insisted that “the divorce

of the child’s natural parents justifie[d] the state’s interference with the parenting decisions by the

mother and adoptive father.” Id. The Court recognized that Hawk was distinguishable in certain

respects, but reasoned that “[t]he 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.” Id. In the absence of a threshold finding that there was a substantial danger of

harm to the child, the Court held that the trial court erred in failing to grant the parents’ petition to

terminate the grandparents’ visitation privileges. Id. at 685.

        In Floyd v. McNeely, No. 02A01-9408-CH-00187, 1995 WL 390954 (Tenn. App. July 5,

1995), this Court followed the principles utilized in Hawk and Simmons. Id. In Floyd, the mother

and father of the children were divorced. Id. at *1. The father died shortly after the divorce, and the

mother remarried. Id. Her new husband did not adopt her children. Id. at *4. The children’s

paternal grandmother filed a petition seeking visitation with the two children of her deceased son.

Id. at *1. The trial court denied the grandmother’s petition, and she appealed. Id. On appeal, the

Court focused on the mother’s fundamental right to privacy in raising her children and found that

her husband’s failure to take steps to adopt the child did not diminish the mother’s fundamental

privacy interest. Id. at *4. The Court stated that “the breakup of the nuclear family, in and of itself,

[does not] 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.” Id. Citing

Hawk and Simmons, the 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. Accordingly, the Court

affirmed the decision of the trial court dismissing the grandmother’s petition for visitation. Id. at

*5.

        The facts of this case are distinguishable from Floyd in that Mother is not married and has

                                                   3
never been married to Lauren’s father. However, the Tennessee Supreme Court has held that a

parent’s fundamental liberty interest in raising his or her children is the same whether the child was

born out of wedlock or inside the bounds of marriage. Nale v. Robertson, 871 S.W.2d 674, 678

(Tenn. 1994); see also Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. App. 1993) (holding that a custody

award to one parent creates “single-parent family” entitled to same constitutional protection against

unwarranted state interference as an “intact, two-parent family”). In Floyd, this Court emphasized

the mother’s fundamental right to privacy in raising her children. In this case, 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.

       In this case, Mother’s fitness as a parent is not challenged, and there is no allegation of

substantial danger of harm to the child. Under these circumstances, the trial court erred in granting

visitation to Grandparents under the Grandparents’ Visitation Act.

       The Grandparents have emphasized that they do not wish to interfere with Mother’s parenting

decisions and seek only to continue the loving relationship they had established with Lauren. Their

intentions and love for Lauren have not been questioned. However, unless the trial court determines

that Mother is an unfit parent or that there is a substantial danger of harm to Lauren, the court cannot

substitute its judgment for Mother’s by ordering visitation with Grandparents.

        The decision of the trial court is reversed, and the McVays’ petition for court-ordered

visitation is denied. Costs on appeal are taxed to Appellees, for which execution may issue if

necessary.



                                               HOLLY KIRBY LILLARD, J.

CONCUR:


ALAN E. HIGHERS, J.




HEWITT P. TOMLIN, JR., SR. J.




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