### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE September 6, 2001 S ession

ARTHUR BLAIR v. MARILYN BADENHOPE
Appeal by Permission from the Court of Appeals, Eastern Section

Chancery Court for Greene County No. 93-101 Hon. Thomas R. Frierson, II, Chancellor

No. E1999-02748-SC-R11-CV - Filed May 3, 2002

This case addresses the

applicable standard to modify a child-custodyorder awarding custody to a non-parent. In 1993, the child’s natural father agreed to give custody to the child’s maternal grandmother, and a consent order was entered accordingly. Thefather later petitioned to modify that order, asserting that a ma terial change in c ircumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that

no material change in circ umsta nces had occurred warranting modification, and a majority of the Court of Appeals affirmed. We granted the father’s application

for permission to a

ppeal and hold that a natural parent c

annot generally

invoke the doctrin

e of superior par

ental rights to modif

y a valid order of custody, even when that order resulted from the parent’s voluntary consent to give custody to the non-parent. Instead, a natural parent s eeking to modify a custody order that grants custody to a non-parent must show that a material change in circu mstances h as occurred, wh ich makes a change in custody in the chi ld’s best interest

s. We also

affirm the judgment of the Court of Appeals finding tha t the fathe r has not shown a material change in circumstances that makes a change of custody in his daugh

ter’s best intere

sts.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Affirmed

W ILLIAM M. B ARKER , J., delivered the opinion of the court, in w hich E. R ILEY A NDERSON and J ANICE M. H OLDER , JJ., joined. F RANK F. D ROWOTA , III, C.J., filed a concurring-dissenting opinion, and A DOLPHO A. B IRCH , J R ., J., filed a dissenting opinion.
Edward Kershaw, Greeneville, Tennessee, for the appellant, Arthur Blair.
John T. Milburn Rogers, Greeneville, Tennessee, for the appellee, Marilyn Badenhope.

OPINION-2-1 Although herself a resident of Tennessee, Ms. Badenhop e filed this petiti on in Mecklenburg County , North Carolina, because both Joy and Joy ’s father w ere residen ts of that state. The parties agree that the North Carolina court properly ass erted jurisd ic tion over t he petit ion, and the

y raise no dispute as t

o the vali

dity of t he court’s

subsequent award of cust

ody.
-3-

FACTUAL BACKGROUND

In November 1989, Susan Badenhope gave birth to her daughter, Joy. She was unmarried at the time of Joy’s birth, and Joy’s father, Mr. Arthur Blair, initially denied paternity. Unfortunately, Susan Badenhope soon b ecame il l with terminal can cer, and she pas sed away in October 1990. During the length of her illness, she and her daughter were cared for by Ms. Marilyn Badenhope, Joy’s grandmother.

After her mother’s death, Joy went to live with her grandmother. In December 1990, Ms. Badenhope filed a petition seeking custody of Joy, and the court granted her temporary custody later that month. 1 Mr. Blair was permitted to contest the action after establishing his paternity through

a blood test, and the court

held a hearing on the custody petition in April 1992. Although the parties presented witnesses at this he

aring, they settle

d the case befor

e submitting it

to the court, agreeing that Ms. Badenhope should have l awful custody of Joy. This consent order, which also gave Mr. Blair specified visitat

ion rights, was ac

cepted by the cou

rt, and on March

16, 1993, Ms. Badenhope was granted custody of Joy.

About one month later, Mr. Blair petitioned the Greene County Chancery Court to modify the custody order and award him custody of Joy. Sometime before the March 1993 order, he married andmoved toGreene County to be closer to Joy. How ever, the chanc

ery court found th

at these facts alone did not constitute a material changein circumstances warranting a modification of custody, andon June 30, 1995, the court denied his

petition to modify the

custody order. Th

is decision was affirmed by the Court of Appe

als in October 1996. See Blair v. Badenhope , 940 S.W.2d 575 (Tenn. Ct. App. 1996), perm. to appeal denied , March 17, 1997.

In July 1997, Mr. Blair

again petitioned to gain custody of his daughter. In this petition, Mr. Blair alleged that a ma

terial change in

circumstances h

ad occurred pr

imarily due to the strengthening of his relationship with Joy. Mr. Blair also asserted that he, as Joy’s natural father , enjoys a presumption of supe

rior parental ri

ghts against

any non-parent seeking or retaining cust ody of his children and tha t he cannot be denied custody of his daughter unles s he is shown to be an unfit parent.
On August 30-31, 1999, the trial court held a hearing on the petition, limiting the scope of its inquiry to facts arising between the denial of the first petition and the filing of Mr. Blair’s second petition. Mr. Blair introduced evidence showing that, since 1995, he and his wife had purchased a

new home in a subdivision that has other children who are close to Joy’s age. He also testifiedthat he has developed a

stronger relatio

nship with

Joy since 1995—a fact confirmed by Joy herself—and that Joy has expressed an interest in living with him permanently. With regard to his employment,-4-

Mr. Blair testified that he works up to sixty-five hours a week and that he frequently travels out of town. Nevertheless,

he testified that he telephones Joy on a daily basis and that he changes his work schedule to be home during Joy’s scheduled visitation. Finally, Mr. Blair’s wife testified that Joy asked to be adopted by her.

Ms. Badenhope tes tified tha t she retired in 1995 as a registered nurse from the Veteran’s Administration. She

is frequently

involved in the activities of Joy’s school, serving as homeroom mother, accompanying Joy ’s class on field tr ips, and participa

ting in the school’s

hot lunch program. Ms. Badenhope also keeps Joy involved in several church and ot her communit

y activities. In addition, the record shows that Ms. Badenhope has willingly encouraged a relationship between Joy andher father, though she apparently limited the phone calls from theBlairs because of their alleged persistence in e

ncouraging Joy to l

ive with them.

As the parties have conceded, Joy is an “outstanding, well-adj usted [,] happy, wonderful child.” The record indicates that Joy has a good academ ic record and th

at she received

all “A’s” during the 1996-97 school year. Joy also testified that she enjoys spending time with her father and that she has many friends in her father’s new neighborhood.

After considering the evidence, the trial court denied Mr. Blair’s petition to modify custody. The court acknowled

ged that Mr. Blair

was a fit parent a

nd that his relation

ship with Joy had grown stronger since 1995. However, the court found that these considerations did not amount to a material change in circumstances warranting a change in custody.

The trial court further found that Joy would be harmed if custody were re

turned to Mr. Blair. Finding that Mrs. Blair pursued an extended extramarital re

lationship that ended in 1997, the court found th at the Blairs’ home environment was not stable. Conversely, the court found that the environment

provided by Ms. Bad

enhope was “stab

le and secure”

and was one in whic

h Ms. Badenhope and Joy enjoyed a loving relationship. Consequently, upon considering the totality of the circumstances, the trial court concluded that awarding custody to Mr. Blair would result in substantial harm to Joy.

M r. Blair appe aled to the Court of Appeals, and a majority of that court affirmed the trial court’s decision. Citing this Court’s decision in In re As kew , 993 S.W.2d 1 (Tenn. 1999), the intermediate

court first acknowledged that parents have a fundamental right to the care and custody of their children. The court then applied a two-pr

onged test to

determine whether a natural parent shouldprevail in a custody modification dispute vis-à-vis a non-parent: (1) whether the noncustodial natural parent

demonstrated a ma

terial change in

circumstances; and (2) whether awarding custody to the natural par ent would result in s

ubstantial harm to t

he child. Apply

ing this test, a majority of the Court of Appe

als agreed that M

r. Bl air failed to establish a mate rial change in circumstances and that the evidence did not preponderate against the trial court’s finding that awarding custody to Mr. Blair would result in substantial harm to Joy.-5-

Writing in dissent, Judge Susano disagreed that the majority applied the correct standard of review. Instead, he believed that the proper inquiry was only whether returning the child to the natural parent would res

ult in substantia

l harm to t he child. To adopt the majority’s standard, he wrote, “is to do substantial violence to the Father’s fundamental constitutional right to rear and care for his child without interference from the state.”

We granted Mr. Blair’s application for permission to appeal and hold that absent extraordinary circumstances discussed below, a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the parent’s voluntary relinquishment of custody to the non-parent. We also hold that the natural father in this case has failed to show that a materi al change in circ

umstances has occ

urred that would warrant a change in Joy’s custody arrangement. The judgment of the Court of Appeals is affirmed.

THE PROPER STANDARD T O APPLY IN PARENT vs. NON-PARENT CUSTODY MODIFICATI ON CASES

The law is now well-settled that the Tennessee Constitution protects the fundamental right of natural parents to have

the care and custody of their children. See Nale v. Robertson , 871 S.W.2d 674, 680 (Tenn. 1994); Hawk v. Haw k , 8 55 S.W.2d 573, 579 (Tenn. 1993). Through Article I, section 8 and its implicit

recognition of pa

rental privacy r

ights, our Constitution req uires that courts deciding initial custody disputes give natural parents a presumptionof “su perior parenta l rights” regarding the custody of their children. See In re Askew , 993 S.W.2d 1, 4 (T enn. 1999). Simply stated, this p resum ption recognizes that “parental rights are superior to the rights of others and continue without interruptio n unless a biological paren

t consents to relinq

uish them, abandons his

or her child, or for

feits his or her pa

rental rights

by some conduct tha

t substantially har

ms the child.” See O’Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995).
Importantly, however, unlike our p r evious cases addressing parents’ rights to the care and

c ust ody of their children, this case does not involve the standards applicable in making an initial award of child custody between a parent and a non-parent. Rather, we are asked to addr ess whether our Constitution ena

bles parents to

assert the superior

parental rights doctrine in order to modify a valid court order awarding custody to a non-parent. Mr. Blair, as the natural parent seeking modification of the original custody order, argues th at the doctrine of

superior rights

must be applied in modification case

s, just as it is to be ap

plied in original actions for custody. He also argues that he is entitled to the presumption of supe rior parental ri

ghts because no c

ourt has ever fou

nd him to be an u nfit parent. We disagree with both of these arguments, but because this Court has not previously addressed these precise issues before us today, it is perhaps helpful to first review how

we have traditionally interpreted our Constitution, with its right of parental privacy, in similar types of cases.

HISTORY OF PARENT v s. NON-PARENT CUSTOD Y DISPUTES IN TENNESSEE-6-

The first time

that this Court balancedthe rights of parents and non-parents in a child custody

case appears to have been in 1937 in Stubblefield v. State ex rel. Fjelstad , 1 71 Tenn. 580, 106 S.W.2d 558 (1937). In Stubblefield , a mother left her husband in New York and traveled with her daughter to Arkansas, where she obtained a secret divorce and an order of custody. The mother then moved to Memphis to live with her grandfather and uncle. Sometime after this move, she died and left physical cus

tody of her daught

er to them.

The father later dis

covered the sec

ret divorce and a

ward of custody to

the moth er, and he petitioned the Tennessee courts to return custody of his daughter to him. This Court agreed that the father had a lawful right to the custody of his daughter vis-à-vis the grandfather and uncle, especia

lly in the absenceof a valid order transferring custody to the grandfather and uncle. In so declaring, we stated that “[t]he parent’s right [to custody] is certainly paramount, other conside rati ons being equal. . . . The court cannot lightly, and without good cause, invade the natural right of the parent to the custody, care, and control of his infant child.” Stubblefield , 171 Tenn. at 587, 106 S.W.2d at 560-61. Interestingly, this Courtalso made clear that there “is no a

bsolute right in

the parent to the custody of his own child” and that “the paramount consideration is the welfare of the child.” Id. at 586, 106 S.W.2d at 560.

The next time that we addressed a custody dispute bet we en a parent and a non-parent was in In re Adoption of Female Child , 896 S.W.2d 546 (Tenn. 1995). Inthat case, a mother, believing that she could not take proper care of her daughter

, asked another c

ouple “to assume

temporarily the responsibility

of caring for the

child.” When tha

t couple later petitioned to have custody of the child, the mother initially agreed, not fully understanding that she was surre ndering full

custody. When the mother realized her mistake, however, she challenged the petition. Although the trial court later awarded conditional custod

y to the mother, the Court of Appeals revers

ed and awarded

custody to the adoptive couple, finding that the child’s best interests were served by her rem aining with the adoptive couple.

We reversed the judgment of the Court of Appeals, finding that the Tennessee Constitution, through its right of parenta l privacy, protec

ts the right of natural parents to have the care and custody of their own children, unless that child’s welfare is threatened by a danger of substantial harm. We also announced the standard to be applied in custody cas e s between paren ts and non-paren

ts generally:
Therefore, in a contest between a parent and a non-pa rent, a p arent cannot be deprivedof the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general “be

st interest of the child” evaluation in making a determination of custody.

Id. at 5 48. Finding that the adoptive couple had introduced no proof showing that the mother’s custody represented

a danger of substantial harm to the child, we therefore ordered that the mother be given full, unconditional custody of her daughter.-7-

The last time that we addressed parent versus non-parent custody disputes was in I n r e Askew , 993 S.W.2d 1 (Tenn. 1999), a case in which a non-parent successfully petitioned for custody of a child based only upon the fact that the child had been living with her for some time. Though the procedural histo

ry of this case wa

s quite complex, the

order initially

removing custody from

the natural mother did not find th at the mother was u

nfit, that the child

was a dependent

and neglected child, or that a danger of substantial harm threatened the child’s welfare. We reversed this order of custody to the non-parent, stating that absent any such findings, “the deprivation of the custody of her child has resulted in an abridgment of [the mothe r’s] fundamental right to privacy.” Id. at 5. Importantly, we further

stated that “[i]n the absence of such a valid initial

order, we belie

ve that it would be unconstitutional for the natural mother to bear the burden of proving the absence of substantial harm.” Id.
Examining the principles ap plied in each of th

ese cases with

respect to custody modification issues, a natural parent enjoys the presumption of superior rights under four circumstances: (1) when

no order exists that

transfers custody from the natural parent; (2) when the order transferring custody from the natural parent is accomplished by fraud or withoutnotice to the parent; (3) when the order transf erring cu stody from the natural parent is invalid on its face; and (4) when the natural parent cedes only temporary and informal cu stody to the non-parents. Consequently, whe

n any of these circumstances are present in a given case, then protection of the right of

natural parents to have the

care and custody of their children demands that they be accorded a presumption of superior

parental rights against cla

ims of custody by non

-parents.
Importantly, however, none of these previous ly recognized c

ircumstances giv

ing rise to the superior rights doctrine exists in this case. Ins tead, we are as ked today to decid

e whether a fift

h circ umstance also warrants application of that doctrine: when the order transferring custody fro m the natural parent is valid in all respects, even though it results from the natural parent voluntari

ly surrendering full and custody of the child to the non-parent.
Though we have broadly recognized that the right of pare ntal privacy in this stat

e is fundamental, see, e.g. , Hawk , 855 S.W.2d at 579, nothing in the language of our Constitution, nor in the volumes of our c

ase law, suggests

that the superior

rights doctrine sh

ould assi st a parent t

o obtain custody of a child when a valid court order properly transferred custody from that parent in the first instance. Nor is there any suggestion from these sources that our right to privacy extends

so far as to warrant application of the superior rights doctrine even when that

valid order results from the natural parent voluntarily consenting to givecustody of the child to a non-par ent. Because all of our prior cases discussing awards of custody to a natural parent from a non-parent ha

ve been those in which the initial transfer of custody from the na

tural parent was

not accomplished w

ith a valid court order or

was not consensual, these cases cannot be properly used to “say what the law is” on this issue in Tennessee.

In this regard , the di ssent in this case makes the same mischaracterization of our prior precedents

as Mr. Blair. Quoti

ng In re Knott, 138 Tenn. 349, 197 S.W. 1097 (1917), the dissent maintains that natura l parents “canno t be deprived of [

the right to the ca

re and custody of

their-8-

children] without notice, and upon some ground which affects materially the future of the child.” Id. at 355, 197 S.W. at 1098. With this general statement, we do not disagree. However, Knott was
a case in which non-

parents attempte

d to fully terminate

a father ’s parental rights in an adoption pr oceeding, without making the father a party to the suit or even giving the father notice of th e proceeding. As applied to this case, therefore, Knott stands as questiona

ble authority to assert

that the doctrine of superior parental rights should be applied in a custody modification proceeding.

Moreover, although the dissentquotes eloquent language from cases addressing the nature of parental rights generally, none of these ca ses ad dresses the rights of natural parents in custody modification proceedings. Rather, virtually all of these cases cited by the dissent deal with parental rights in areas not addressing custody. See Troxel v. Granvil le , 530 U.S. 57 (2000) ( addressi ng parental rights to limit grandp arent visitation) ; Parham v. J.R. , 442 U.S. 584 (1979 ) (ad dressing parental rights and obligations concerning the voluntary civil commitment of their children); Prince

v. Massachusetts , 321 U.S. 158 (1944) (addressing parental rights to the training and encouragement of the child’s religi

ous beliefs); Pierce v. Society of Sisters , 268 U.S. 510 (1925) ( addressin g p arental rights to the educa tion of their childr

en); Lehr v. Robertson , 463 U.S. 24 8 (1983 ) (addressing the scope of parental rights in an adoption proceeding); Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993) (addressing parental r ights to limit grandpa

rent visitation). T

he sole exception

is Petrosky v. Kenne , 898 S.W .2d 7 26 (Tenn. 1995), a case that addressed parental rights to modify

a temporary

order of custody to a grandmother that was accomplished without actual notice to the father.

As such, each of these cases cited by the dissent is unhelpful to determine the precise issue before us today. Therefore, it may be useful to examine cases from other jurisdictions that have dealt withcustody modification cases in which (1) a valid order awarding custody to a non-parent e

xists; and(2) the order resulted

from the parent’s voluntary decision to cede custody of the child to a nonparent.

THE EFFECT OF A VALID ORDER TRANSFERRING CUSTODY TO A NON-PARE NT

In arguing for

the application of

the superior righ

ts doctrine, Mr. Blai

r does not specifi

cally addresswhat effect the presence of a valid court

order awarding custody of Joy to her grandmother should h ave u pon the analysis of this case. However, we view this fact as critical to the proper resolution of the issues here. Most other jurisdictions addressing this issue have largely concluded that the superior righ

ts doctrine is not a pplicable when a natural parent seeks to modify a custody arrangement

established by a valid order. Instead, these courts focus upon w hether t he change in custody would be in the best interests of the child.

In one such case, the Alaska Supreme Court addressed the issue of whether a natural parent seeking to modify a

valid court order

awarding custody

to a non-parent mu

st still “make the sa

me threshold showing of a substa

ntial change in ci

rcumstances as in a pare nt-parent case[.]” After reviewing cases from other jurisdictions, the c

ourt noted that “

the modern rule is

to impose

the same-9-

changed-circumstancesrequirements on p arents who seek t

o modify a non

parent’s court-

ordered , permanent custod

y as on pare

nts who seek to m odi fy par ent al c ust ody. ” C.R.B. v. C.C. , 959 P.2d 375, 380 (Alaska 1998)

. When further asked what effect the presumption of parental rights had upon the burden of pro

of in change-of

-custody cases,

the Court answere

d that

[o]nce a court has prope

rly transferred c

ustody from a

parent to a nonparent, it does

no good to apply the

[parental preference] doctrine to weaken the substanti al change requirement

for modification. The proceeding that gave the nonparent custod

y will have enabled

the parent to exercise the parental preference, and achieved the goal that leads us to treat parent-nonparent cases differe

ntly from othe

r custody ca

ses. Having

once protected the pare

nt’s right to custody

, at the risk of sacrif

icing the child’s b

est interests, we should not then sacrifice the child’s need for stability in its care and living arrangements by m

odifying those arran

gements more readily than i

n a parentparent case.

Id. (emphasis added). Consequently , while a parent is

entitled to the pre

sumption of superio

r rights in the initial custody

determination, the

Alaska courts wil

l not permit that par

ent to modify

a valid order without first showing that the change is in the best interests of the child.

The Texas Court of Appeals has recently reached a similar conclusion as to the diminished roleof the superior rights doctrine in modification cases. In In re Ferguson , 927 S.W.2d 766 (Tex. App. 1996), a mother petitioned to have custody of her children returned to her from their paternal grandmother. The court of appeals denied the mother’s petition, however, because she could not

s how that the modification of custody was in the best interests of her children. In discussing th e effect of the su

perior rights doc

trine in modificat

ion cases, the co

urt stated that

in an original custody proceeding, the court must heavily favor the parents by reason of the rebuttable [superior rights] presumption. I f a non parent rebuts the presumption in the original custody determination, the parents in a su bseque nt modification proceeding must meet the requirements for a change of custody set out in Tex. Fam. Code Ann. § 156.101 [requiring that the modification would operate to improve the child’s conditions and would be in the child’s best interests].

Id. at 768-69 (citations omitted and emphasis added).
Finally, as the Louisiana

Court of Appeals

has made clear, the superior rights doctrine is not absolute, and a parent

cannot invoke its

protections to overturn a valid court order placing custody of a child with a non-parent. In Millet v. Andrasko , 640 So. 2d 368 (La. Ct. App. 1994), a father petitioned to modify a previ ous consent order that awarded custody of his child to two distant relatives. Although the father argued that a natural parent was entitl

ed to modify the previous order unless “compelling reasons” existed to deprive that parent of custody, the trial court disagreed and applied a best-interests-of-the-child analysis to deny the father sole custody.2 A “non-consider ed” decree under

Louisiana

law is a stipula ted judgm ent. Crowson v. Crowson , 742 So. 2d 107, 109 (La. Ct. App. 199 9).
-10- The court of appeals

affir me d, holding that the “

compelling reaso

ns” test did not appl

y in

mo dification proceedings. In stead, the court c

oncluded that a be

st -interests-of-

the-child analysis wa s
more appropriate give

n “the desirabili

ty that ther e be an end to litigation where a party has previously

had a full and fai

r opportunity to litig

ateand the undesira

bility of changing the child’s establishedmode of

living except for imperative reasons.” Id. at 371 (internal quotations omitted). As such, the court

concluded that
“[a]t a subsequent hearingto change custody awarded by a ‘nonconsidered’ decree we find that

the burden of proof should be on the party seeking the change and the standardshould be the same as is applicable in custody disputes between p aren ts. Thus the natural [parent] whois seeking a modification of the consent judg ment must show a material change in circumstances and that a change in custody is in the best interests of the child.”

Id. (citing and quoting Hill v. Hill , 602 So. 2d 287, 289 (La. Ct. App. 1992)). 2

As these cases demonstrate, parents in the initial custody pr oc eedings enjoy a strong presumption that they are entitled to the physical custody of their children. However, having once protected the rights of natural parents to thecare and cus tody of their children, no constitutional p rinciple demands that natural parents again be afforded a presumption of superior right s in a subsequent

modification proceeding. Of course, where an initial order does not

exist, or is otherw

ise invalid, then the Constitution requires a court to apply the superior rights doctrine. However, because these c

ircumstances do n

ot exist in this case, we disagree that the Tennessee Constitution compels application of that doctrine in the face of a lawful and valid court order vesting custody of Joy in her grandmother.

THE EFFECT OF VOLUNTA RY PARENTAL CONSENT TRANSFERRING CUSTOD Y TO A NON-PARENT

In response, Mr. Blair argues that notwithstanding the presence of a valid order

transferring custody of Joy to her grandmother, he is nevertheless entitled to invoke the presumption of superior rights because no court has found him to be an unfit parent. However, he does not address the effect that his voluntary conse

nt to relinquish cus

tody of his daughte

r has upon his

ability to claim this supposed constitutional entitlement. In our view, th ough, the father’s voluntary decision to give custod y of his daughter to h er grandmother o

nly further under

mines his argument t

hat t h e Constitution commands application of the sup erior rights doctrine in this custody modification proceeding.-11-

Several other jurisdictions have agreed that a pare nt’s voluntary consent to re linquish custody of a child to a non-parent will nullify the effect of the superior rights do ctrine in a cu stody modification proceeding. For example, in Price v. Howard , 484 S.E.2d 528, 537 (N.C. 1997), the North Carolina Supreme

Court recognize

d that parents

have the right to the care and custody of their children, but i t also noted that these rights are not absolute. Indeed, the court stated that a parent may lose this right when

his or her conduct is i

nconsistent with thi

s presumption or if h

e or she fails to shoulder the responsibilities that are attendant to rearing a child. If a natural parent’s conduct has not been inconsistent with his or her constitution ally pro tected status, application of the “best interest of the child” standard in a custody dispute with a nonparent would offend the Due Process Clause.

Id. at 534 (citations omitted). Applying this standard, the Price Courtconcluded that the voluntary relinquishment

of indefinite custody to a non-parent was an exampl e of conduct that was inconsistent withthe parent’s con

stitutionally prote

cted rights. In remanding the case to determine whether a change in custody under these circumstances was in the best interests of the child, the court noted, rather poignantly, that “‘ [i]n this instance the welfare of the child is paramount. The dictates of humanity must prevail over the whims and caprice of a parent.’” Id. at 535 (quoting In re Gibbons , 101 S.E.2d 16, 22 (N.C. 1957)).

In Ex parte McLendon , 455 So. 2d 863, 865 (Ala. 1984) , the Alaba ma Supreme Court

reco gnizedthat “[a] natur al parent has a pr

ima facie right to

the custody of his or

her child

. ” Howeve r, the c ourt further concluded that “this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to

a non-parent.” Id. (emphasis added). Further addressing the standard to be applied in modification of custody cases, the McLendon Court held,

Where a parent has transferred to another [whether it be a non-paren t o r the other parent] , the custody of h[er] infant child by fair ag reement, which has been acte d upon by such other person to the manifest interes

tand welfare of the child, the parent will not be permitted to

reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child’s welfare.

Id. (citations omitted and alterations in original).
Finally, the Supreme Court of Mississippi has also recentl y considered the proper standard to be applied in cus tody modi fication proceedings “where the moving natural parent, or parents, have previously

relinquished custody.” In Grant v. Martin , 757 So. 2d 264, 266 (Miss. 2000), the court addressed a case in which a mother petitioned for the custody of her children af t er having earlier agreed to give full custody

of them to their

paternal grandparents. The court first noted that “[o]ur law cle arly has a strong presumption that a natural parent’s right to custody is superior to that of third parties, whether grandparents or others. This is as it should be.” Id.3 Importantl y, the dissent maintains

that “par

ents in many cas

es may make custodial d ecisions w ithout fully understandi

ng the legal ramifications of their choices.” Characterizing the voluntary waiver of parental ri ghts as a “trap for the unwary,” the dissent expresses concern that parents may not fully understand the effect of such a w aiver. We fully agree with the dissent in this regard, and we emphasize here, as above, that a parent’s voluntary relinqui shment of

custody must be made with knowle dge of the cons equences of t hat decis ion. Where a nat

ural parent volunta rily relinqui shes cust ody without knowledge of the effect o f that act, then it cannot be said that these rights were

acco r ded the protec

tion demanded by the Constit ution. As s

uch, appli

cation of t

he superior

rights doctrine i

n a subsequent

modificati

on proceeding would be justi fied. However,

no such allegation has been made by M r. Blair in this case.

-12- However , the Grant

court then held that a natural parent who “voluntarily relinqui she s custody of a minor child, through a court of competent jurisdiction, has forfeited the right to rely on the existing natural parent presumption [to modify an existing custody order]. A natural parent may reclaim custody of the child only upon showing . . . that the change in custody is in the best interest of the child.” Id. Significantly, the court did not conclude its analysis upon ex aminati on of the paren t’s interests. Rather, it recognized that a voluntary relinquishment of custody by the parent demanded conside

ration of other in

terests.

As these cases powerfully demonstrate, a parent’s voluntary consent to cede custody to a non-parent

defeats the ability of that pare nt to later claim superior parental rights in a subsequent proceeding to modify custody. Presuming that a parent is afforded theopportunity to assert superior parental rights in the initial c ustody proceedin

g, then the paren

t’s voluntary tran

sfer of custody to

a non-parent, with knowledge of the consequencesof that transfer , effectively

operates as a waiver of these fundamental parental rights. 3 Under these circumstances, therefore, the Constitution does notagain entitle the natural parent to assert superior parental rights to modify a valid custody order, even if no court has previously found the natural parent to be unfit.

THE PROPER STANDARD TO APPLY IN CHANGE OF CUSTODY CASES

Basedon our prior case

law interpreting

Article I, sectio

n 8 in this co ntext, and given the overwhelming authority from other juri sdictio ns on this issue, we conclude that our Constitution does not accord natural parents a presumption of superior righ ts to modify an existing a nd valid order of custody, evenwhen that order r esults from the par

ent voluntarily

agreeing to give custody to the non-parent.

Though strong in man

y respects,

no aspect of the fundamental right of parental privacy is absolute, and a par ent who is given the opportunity to rely upon the presumption of superior rights in an initial custody determination may not again invoke that d octrine to modify a valid custody order. Absent proof of the custody order

’s invalidity or pro

of that the paren

tal rights

were not protected in the initial custody proceeding, the child’ s interest in a stable and secure environment

is at least

as important, and pro bably more so, than the parent’s interest in having custody of the child returned.
Accordingly, we hold that a natu ral parent is not g

enerally entitle

d to invoke the doctrine of superior rights to modify a va lid cus tody order awarding custody to a non-parent. Instead, in the4 In a similar vei n, the dissent

repeats in sever

al places that

our failure to recogniz e the doctr

ine of super

ior pa rental r ights i

n a custody modifi

cation proc

eeding somehow repres ents “undue gover

nment interf

erence” wit

h a parent’s right to the care and custody of his or her child. Respectfully, however, a decisi on not to modify a valid order of custody,

except upon a showi

ng that a cha

nge in circ

umstances shows that such a change is in t he best int

erests of (continu ed...)
-13- absenceof e xtraordi nary circumstances—for instance, the natural parent was not afforded an opportunity

to assert superior parent

al rights in

the initial custody p

roceeding; the c

ustody order is invalid on its face; the or

der is the result of

fraud or proce

dural illegality; o

r the order gran

ts only temporary custod

y to the non-pare

nts—a trial court s

hould apply

the standard

typically applied

in parent-vs-par

ent modification c

ases: that a material change in circumstances has occurred, which makes a change in

custody in the child’s best interests. See, e.g. , Nichols v. Nichols , 792 S.W.2d 713, 715-16 (Tenn. 1990). As in all other cases, the burden of establishing these factors rests upon the party seeking the change in custody. See Rogero v. Pitt , 759 S.W.2d 109, 112 (Tenn. 1988).
Citing Troxel v. Granvil

le , 530 U.S. 57, 68 (2000) and Parham v. J.R. , 442 U.S. 584 , 602 (1979), the diss e nt in this case posits that we have failed “to acknowledge the widely-accepted ‘presumption that fit parents a ct in the best inter

ests of thei r children.’” Notwithstanding the fact that these cases are wholly inapposite—they address parental rights to limit grandparent visitation and to commit their child ren to civil instituti

ons—we disagree

that our decision t

oday fail s t o ackno wledge this important presumption in child custody cases. To the contrary, we have reaffi rme d this presumption as a

n essential part o

f the superior rig

hts doctrine. However, as we have gone to great lengths to demonstrate, this presumption shapes the initial deci sion of custody, and where a valid order exists transferring custody of a child away from a natural parent, the Constitution does not again compel th

at this presumption b

e given effect.

The dissent also maintains that our holding today works “to deny superior rights to a parent who voluntarily surrenders custody to a non-parent [ and] will foreve

r penalize pare

nts whose decision to surrender cus

tody was made with

the best interests of the child as the paramount factor.” Again, we must disagree. Nothing we have said today operates to punish or penalize natural parents , andin no way do we “forever” foreclose the possibility that a pa

rent will be unable to regain custody of the child.

However, our decision today does recognize that the parental rights given gr eat weigh t in initial custody determinations must be balanced with other interests once a

valid custody order is in place. In our view, the di ssent gives too little

weight to the inter

ests of the child in a stable and

secure environment, andit risks subjecting t he child to “‘the whims and caprice of a parent.’” Price
, 484 S.E.2d at 535 (citation omitted). Indeed, if, as the dissent maintains, that a

parent’s voluntary decision to give c ustody to a non-parent is made “with the best interests of the child as the paramount factor,” can we not also suppose that the best interests of the child should again be the paramount

factor when deciding whether custody should be returned to the naturalparent? We see

no compelling reason why the Constitution would command otherwise, provided that the rights of the parent were protected in the initial determination. 44 (... continued)

the child, is hardly an “undue” or “unwarranted” stat e inte rference with pare ntal rights. Ra ther, the use of a bestinterests standard is ent irely “warranted” i

n this context becaus e it rec ognizes tha t the existenc

e of a vali

d order of custody deman ds consid eration of interests othe r than tho se of the na tural paren t.

5 Contra ry to the standard advocated by M r. Blair’s, the dissent in this case argues for the adoption of a standard that would pl

ace the burden of proof upon the non-cu stodial natu ral parent to show that a c hange of cust

ody would not subst

antial ly harm the chi

ld. This standard may i

ndeed elimina

te the similarity of modificat ion proceedi

ngs to a show-cau se process, but one may legiti mately quest

ion whether f

orcing the na

tural par ent to prove a negative propo sition effectiv ely adva nces that p osition.

More importantl

y, however, t

he standard proposed by the dissent is still w holly focused on the interes ts of t he parent, with virt

ually no at

tention gi

ven to those

of the chi

ld. Alt hough discounted by the dissent, Mr. Blair’s voluntary relinqui shment of custody is si gnificant because t

he waiver of his custodial rights, confirmed in a valid order of custody, significantly diminishes the const itutional importa nce that the se rights would have otherwi se assumed. Cons equently, the child’s interests in a st able and secure environmen t take on a more dom inant role here in determining whether the father is enti tled to have custody r

eturned, a

nd as such, we s

ho uld also l

ook to th ese interests in deciding whethe r to modify the val

id order of c

ustody.
-14- Moreover, generally applyi ng the superior ri

ghts doctrine in cu

stody mo dificati on proceedings as advocated by Mr. Blair would pr

esent practica

l problemsfor the administration of justice in this state. In givi ng effect to this d

octrine in modific

ation cases, Mr. B lair would essentially

have us create

a situation analog

ous to a show-caus

e process in

which the custodial nonparent would have to show c

ause why the child

should not be returned to the natural parent. In such

a case, the natura

l parent would

be entitled to have

a child returned—even in the face of a valid order transferring custody away from that parent—unless the child’s custodian can sho w that a change in custody would result in substantial harm to the child.

We believe that sucha process would effectively render existing orders of custody to nonparents practically worthless. As one court faced with a similar dilemma has recognized,

If the court were to find that the custodians of [the child] were required to prove extraordinary circumstances in order to retain c

ustody of this child

, it woul d be concluding that final orders of custody are worthless and tha t the custodian of a

child could have no confidence in the court process since, upon demand of the n atural parent, the legal custodian wo uld bear the burden of proving that extraordinary circumstances required their continuing to have custod y of the infant child. Requiring such a burden of p roof to be borne b

y the respondents

in a proceeding to modify a custody order

would practicall

y render the initial custody determination a Pyrrhic victory f

or the non-pare

nt.

DarleneS. v. Justino L. , 533 N.Y.S.2d 179, 182 (N.Y. Fam. Ct. 1988). We must respect valid orders of custody, and we will not lightly embrace a rule that effectively renders such orders without effect or worth. 5

APPLICATION OF THE STAN DARD IN THIS CASE-15-

Applying this standard to the present case, the “threshold issue is whether there has been a material change

in circumstances occurring subsequent to the initial custody determination.” See Placencia v. Placencia

, 48 S.W.3 d 732, 736 (Tenn. Ct. App. 2000). As the Court of Appeals has acknowledged, “[t]here are no hard and fast

rules for determining when a child’s circumstances have changed sufficiently to

warrant a change of his or her custody.” Solima v. Solima , 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998). Nevertheless, the following factors have formed a sound basis to determine whether such a change has occurred: the change has occurred after the entry of the order sought to be modified and the change is not one that was known or reasonably anticipated when the order was entered, see Smith v. Haase , 521 S.W.2d 49, 50 (Tenn. 1975) , and the change o f circumstance

s is

one that affects the child’s well-being in a meaningful way, Hoalcraft v. Smithson , 19 S.W.3d 822, 829 (Tenn. Ct. App. 1999).
In this case, Mr. Blair asserts that material changes in circumstances are present due to his growing relationship with his daughter and to his purchase of a new home since 1995. As the Court of Appeals held in an earlier appeal in this very case, the development of a closer bo nd betwe en parent and child is not typically deemeda material change in circumstanceswarranting a ch ange in custody, because such a development is one “that is hoped for in granting regular visitation, not an unexpected circumstance.” See Blair v. Badenhope , 940 S.W.2d 575, 576 (Tenn. Ct. App. 1996), perm. to appeal denied , Mar. 17, 1997. In addition , the non-custodial parent’s purchase of a new home in a suitable neighborhood since 1995 cannot constitute a material change in circumstances becaus e “[c] ustody is not changed because one parent is able to furnish a more commodious or pleasant environment than the other . . . .” Id. (citation omitted).
Importantly, we do not foreclose the possibility that the development of a stronger relationship

between a child

and the non-custodial parent could, in c ombination with othe

r factors, support a finding of a mat erial change in c ircumstances. Ho

wever, the rec

ord here fully sup

ports the trial court’s finding that Joy’s maternal grandmother has provided her with a loving, stable hom

e and a caring environment. Indeed, no doubt because of these encouraging circumstances, Joy has excelled academically and has become involved in a variety of scho

ol and church pro

grams. Because Joy’s present environment with Ms. Badenhopeis not one that adve rsely affects

her wellbeing in any way, the interest in maintaining a stable and successful relationship between Joy and her grandmother weighs against any custodial change at this point. Cf. Taylor v. Taylor , 849 S.W.2d 319, 328 (Tenn. 1993).
Consequently, after carefu lly reviewing the re

cord in this case,

we are unable

to say that the evidence preponderates against the trial court’ s finding that Mr. Blair has failed to show the existence of a material change in circumstances warranting a change in Joy’s

custody arrange

ment. See Hass v. Knighton , 676 S.W.2d 554, 555 (Tenn. 1984) (stating that the standard of r ev iew of factual findings

in child custody ca

ses is “de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of t he evidence is otherwise.” (citing Tenn. R. App. P. 13(d)). Therefore, we affirm the judgments of the lower courts notto grant Mr. Blair’s petition to modify the previous custody order awarding custody of Joy to Ms. Badenhope.-16- CONCLUSION

In summary, w e hold tha t a natural parent cannot invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the parent’s voluntary consent to give cust

ody to the non-parent. Instead, a natural parent seeking to modify a custody order granting custody to

a non-parent must

sh ow that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. The judgment of the Court of Appeals is affirmed.
Costs of this appeal are assessed to the appellant, Mr. Arthur Blair.

____________________________________ WILLIAM M. BARKER, JUSTICE