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