# FILED Feb. 12, 1997 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) JOHNNY GLENN HILLIARD, ) Weakley County Chancery

Court ) No. 13598 Plaintiff

/Appella nt. ) ) VS. ) C. A. NO. 02A01-9609-CH-00230 ) MISTY LYNN HILLIARD ) And TERRY MIN TON , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Chancery

Court of Weakley County at Dresden. Honorable William Michael Maloan, Chancellor James H. Bradberry , BRADBERRY, CROWE & MacLEO D, Dresden, Tennessee Attorney for Plaintiff/Appe llant. Langdon S. Unger, Jr. , Martin, Tennessee Attorney for D efendants/Appellees.

OPINI ON FIL

ED: REMANDED
FARMER, J. CRAWFORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)1 Custody orders are neither temporary

nor permanent in that they remain under the control of the court and can be chang ed upon a proper showing of material cha nge of circumstances. Dept. of Human Service

s v. Gouvi

tsa , 735 S.W.2d 452 (Tenn. App. 1987). 2 Grandparents’ visitation rights . -- (a) The natural or leg al grandparents of an unmarried minor child may be granted reasonable visitation rights to the child during such child’s mi nority

by a court of compete nt 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) .

Jo hnny Glenn Hilliard (F ather) appealsfrom the o rder of the trial court g ranti n g visitation rights to his son’s materna l grand mother. F ather a

nd Misty Ly nn Hilliar d (now Sch

rems) (Mother) marri ed in 1992. Alexander Glenn Hilliard (Alex) was born in May 1993. The parent s divorcedin January, 1 995 and temporary custody 1 was awarded to Terry Minton, the maternal grandmother. At that time, Mother was living with her mother, Terry Minton. Mother curren

tly resides in Florida with her present husband.

Father subsequently filed a pe

tition for amodification 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 mat ernal grandmother, Terry Minton, was granted visitation with the child every other weekend fro m Friday at 5:00 p.m . until Sunda

y a t 5:00 p.m. I

t is from th

is portion of that or

der that Father appeals .
Father states the issue on appeal as “[w]hether the maternal grandmother is entitled to visitation

with a thr

ee-y ear-ol d gran dson wher

e the gr andson is in the custody of the fa ther and the mother has relocated to another state.” Fa ther relies upon the authority of Hawk v. Hawk , 855 S.W.2d 573 (Ten

n. 1993); Simmons v. Simmons , 900 S.W.2d 682 (Tenn. 1995) a nd F loyd v. McNeely , No. 02A01-9408-CH-001 87 (Tenn. App. July 5, 1995). Hawk concluded that “Tennessee’s historica

lly s t rong prot ection of parental rights and the rea soning of federal constitutional cases c onvince u s that par ental rig hts constit

ute a fundamenta

l liberty interest under Article I, Se ction 8 of

the Tenn essee Co nstit

utio n.” Hawk held T.C.A. § 36-6-301 2 to be an u nconstitutional invasion of parents’ privacy rights as afforded under the Te nnessee Constitution when applied to the facts presented. That case involved a petition for grandparental visitation filed by the paternal grandparents a gainst married parent s w ho had maintained c ontinuous c ustody of their childre n and whos e 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 interf erence from the s tate abs ent a showing of “ substa nt ial harm” to a child’s welfare.Id . at 577. Hawk reasoned that there wa s no compe

lling sta te intere st justify

ing inte rfere nce with such right of

parents abse nt th is showing. Id . at 582. Hawk stated that without a showing of substantial harm to the child, “a court ma y no t constitut

ionally impose its own subjective notions of the ‘best inte

rests of the child’ when an intact, nuclear family with fit, married pa rents is involved.” Id . at 579. To this end, Hawkdeclined to proceed with a “best interests of the child” analy sis until and after the required showing of ha rm which the court viewed as the “sole pr

otection that par ents have agains tpervasive state interference in the pa renting process.” Id . at 580-81. Moreover, Hawk , refused to assume

that the g randpar ent-gr andchild relation ship alway s proves b enefic ial to the child as such assu

mp ti on, “ove

rlooks the

necessity o f a thre shold find ing of ha rm 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 c hild’s paternal grandparents. The court recog nized that Hawk was distin guish able in ce rtain respects, but reasoned that “the relation ship betweenan 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 conta ined no evidence that

a substantial danger of harm threatened th e child and thus found no compelling state interest justify ing court intrusion upon the natural mother’s and adoptive father’s rig hts as parents to precludea relati onship between their child and the paternal g randparents. Id . at 685.
In Floyd v. M

cNeely 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 h ad had a close re lationship withthe childre

n from the ir birth un til the dea th of their father. This Court said:

In view of the reasonings extended by o ur supre me court in Simmons and Hawk , we are convinced that McN eely ’s right to parent her children as she sees fi t, in cludi ng a decis ion re gardin g a relation ship betweenthem and their grandmother, is no less greate r than the right afforded to the married natural parents under Hawk . W e conclude that the rights affo

rded to th

e paren ts in Hawk ex tend equa lly t o McNeely despite th e death of her children’s father and her subsequent remarriage. To this end, we do not view the breakup of the nuclear fami l y, in and of itself, to c onstitute a substantia

l harm to a

childsufficient to ju st if y s tate inte

rfere nce with a

fit pare nt’s dec ision to preclud e a rela tionship be

tween tha t child an d his/her

grand parents . 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 gra ndparents filed a

petition for visitation which was granted in the court below. In that case

the parents were never marrie d and, in reversing the trial court, this Court stated that “mother’s unmarr ied status does not diminish her fun damental privacy inter est in raising Laure

n. Therefore, under Hawk , the trial court could no t order visitation with Grandparents in the absence of a threshold finding that Mother was unfit or that the circumstances presented a substantial dang er of harm.” McVay , slip op. at 4.

Appellee relies upon an unreported c ase fro m the Middle Section of

this Court, Va nderpool

v. Boone , No. 01-A-01-9508-CH-00358 (Tenn. App. March 27, 1996), w her ein th e grandmother had been awa rded visitation in the divorce decree. The paternal grandmother filed a petition against the mother for enforce ment of her visitation rights and for contempt. The trial court found there had been

no mater

ia l change of circumstances to justify a change in the visitation provisions and the appellate court affirmed. The cour tnoted in its opinion that the supreme court has set constitutional limits on th e authority of trial c ourts 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 a

nd enfor ce gra ndparen t vis itation orders u

nder app ropriate circumst ances. Vanderpool , slip op. a

t 6. The c ourt wen

t on to say

that:
The present case does not involvethe one situation discussed by the Supreme Court (significant danger of harm to the child) where the courts are specifically authorized to ignore thepreferences of the parentsand issue a visitation order deemed to be in the

best inter ests of the child. However, the order Mrs. Vande rpool now objects to differs from those reversed by the Supreme Court

in the above-cited cases, in that she herself

sugge sted that v

isitation b e gran

ted to Mrs. Seat, w hile the visitation orders granted by the trial courts in t h eHaw k and Simmons cases were issued over the objections of the parents .
Id . at 6-7. U

nlike the custodia l parent in Va nderpool , nothing in the re cord in th

e prese nt case reveal s that the f

ather su gges ted that visitation b e gran ted 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 r

emain wit

hin the co ntrol of th

e court a nd are su bject to mo dif

icati on upon appropr iate show ing of change

of circ umstance s. However, in the present case the trial court was appa rently satisfied that

Father had shown sufficient change of circumstanc es to support a change of c us tody from the materna l grandmother

to Father. That ruling is not appealed. Unlike Vanderpool , the present case does not involve a modification of grandmother’s visi tati on, bu t rath er a mod ifica tion of cus tody. Al thou gh 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 thecases pr eviously cited in that Hawk, Simmons, F loyd and McVay were all petitions brought by grandparents seeking visitation pursuant

to T.C.A. § 36-6-301 . Never theless, we believe that

the under

lying holding

in those cases, that parents possess a constitutional right of privacy in par

enting decisions not subject to interference

from the state absent

a showing

of substa ntial har m to the ch

ild, is app licable t

o this case. The best interest o f the chi ld is not determineduntil and a fter the require d 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 interf ere abs ent a

threshold finding of a danger of substantial harm to the child.

As heretofore noted, Alex was born March 25, 1993. Du ring the p endency

of the parents ’ divorce, temporary custody was aw arded to the m other “in the home of the maternal grandm other,” Mrs. Terry Minton, with reasonable visitation to the father. The final decree o f divorce awarded temporary custody of

Alex to Mrs. Minton, wh o was thir ty- seven y

ears old , with visitation rights to the father. No visitation to the mother was provided for in this order.

The s tatement of the evidence on the hearing on Father’s petition to modify the decree3 The mothe r did not a

ppeal the trial cou rt’s dec ision not to a

ward he r visitatio n rights . to award him sole custody of Alex indicates that Father and Mrs. Minton had some d

isagreements over his visitation

with Alex aswell as pa

yme nt 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 littlewas done for Alex by his mother. The mother, who ha s remarried and moved to Florida, was not a ward ed an y v isita tion w ith Al ex. 3
The record

before us does no t indicate

whether the trial court made any determination as to whether a denial of

visitation to Mrs. Mint

on with Ale

x would result in a substantial danger of harm to him. The reco rd does indicate that Mrs. Minton has, in effect, been Alex’s mother since in fa nc y.
We believe that this is an appropriate case to be remanded to the tria l court pursuant to T.C.A. § 27-3-128 for the trial court to make a threshold determination of whether cessation of the relationship betweenAlex and Mrs. Minton presents a substantial danger of harm to Alex and, if such ha rm is found , to deter

mine whet

her visita tion with Mr s. Minton is in Alex’s be st intere st. Therefore, this case is remanded to the trial court for further proceedings consistent withthis opinion. The costsof this ap peal ar e taxed one -half to Joh

nny Glenn Hilliard an d one-ha lf to Te rr y Mi nt on , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

______________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)