IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 6, 2001 Session

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-custody order 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. The father later petitioned to modify that

order, asserting that a material change in circumstances 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 circumstances had occurred warranting modification, and a majority of the

Court of Appeals affirmed. We granted the father’s application for permission to appeal and hold

that 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 consent to give custody

to the non-parent. Instead, a natural parent seeking to modify a custody order that grants custody

to a non-parent must show that a material change in circumstances has occurred, which makes a

change in custody in the child’s best interests. We also affirm the judgment of the Court of Appeals

finding that the father has not shown a material change in circumstances that makes a change of

custody in his daughter’s best interests.

Tenn. R. App. P. 11 Application for Permission to Appeal; 

Judgment of the Court of Appeals Affirmed

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON and

JANICEM.HOLDER, JJ., joined. FRANK F.DROWOTA,III,C.J., filed a concurring-dissenting opinion,

and ADOLPHO A. BIRCH, JR., 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 petition 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 asserted jurisd iction over the petition, and they raise no dispute as to the validity of the court’s subsequent

award of custody.

-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 became ill with terminal cancer, and she passed 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 hearing, they settled the case before submitting it to the court, agreeing

that Ms. Badenhope should have lawful custody of Joy. This consent order, which also gave Mr.

Blair specified visitation rights, was accepted by the court, 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

and moved to Greene County to be closer to Joy. However, the chancery court found that these facts

alone did not constitute a material change in circumstances warranting a modification of custody,

and on June 30, 1995, the court denied his petition to modify the custody order. This decision was

affirmed by the Court of Appeals in October 1996. SeeBlair 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 material change in circumstances had occurred primarily due to the strengthening

of his relationship with Joy. Mr. Blair also asserted that he, as Joy’s natural father, enjoys a

presumption of superior parental rights against any non-parent seeking or retaining custody of his

children and that he cannot be denied custody of his daughter unless 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 testified that

he has developed a stronger relationship 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 testified that 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 trips, and participating in the school’s hot lunch program.

Ms. Badenhope also keeps Joy involved in several church and other community activities. In

addition, the record shows that Ms. Badenhope has willingly encouraged a relationship between Joy

and her father, though she apparently limited the phone calls from the Blairs because of their alleged

persistence in encouraging Joy to live with them.

As the parties have conceded, Joy is an “outstanding, well-adjusted[,] happy, wonderful

child.” The record indicates that Joy has a good academic record and that 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 acknowledged that Mr. Blair was a fit parent and that his relationship 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 returned to Mr. Blair.

Finding that Mrs. Blair pursued an extended extramarital relationship that ended in 1997, the court

found that the Blairs’ home environment was not stable. Conversely, the court found that the

environment provided by Ms. Badenhope was “stable and secure” and was one in which 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.

Mr. Blair appealed 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 Askew, 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-pronged test to determine whether a natural parent

should prevail in a custody modification dispute vis-à-vis a non-parent: (1) whether the noncustodial natural parent demonstrated a material change in circumstances; and (2) whether awarding

custody to the natural parent would result in substantial harm to the child. Applying this test, a

majority of the Court of Appeals agreed that Mr. Blair failed to establish a material 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 result in substantial harm to the 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 material change in circumstances has occurred that would

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

THE PROPER STANDARD TO APPLY IN PARENT vs. NON-PARENT 

CUSTODY MODIFICATION 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. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). Through Article I,

section 8 and its implicit recognition of parental privacy rights, our Constitution requires that courts

deciding initial custody disputes give natural parents a presumption of “superior parental rights”

regarding the custody of their children. See In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999). Simply

stated, this presumption recognizes that “parental rights are superior to the rights of others and

continue without interruption unless a biological parent consents to relinquish them, abandons his

or her child, or forfeits his or her parental rights by some conduct that substantially harms the child.”

See O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995).

Importantly, however, unlike our previous cases addressing parents’ rights to the care and

custody 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 address whether

our Constitution enables 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 that the doctrine of superior rights must be applied

in modification cases, just as it is to be applied in original actions for custody. He also argues that

he is entitled to the presumption of superior parental rights because no court has ever found him to

be an unfit 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 vs. NON-PARENT CUSTODY 

DISPUTES IN TENNESSEE
-6-

The first time that this Court balanced the rights of parents and non-parents in a child custody

case appears to have been in 1937 in Stubblefield v. State ex rel. Fjelstad, 171 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 custody of her daughter to them.

The father later discovered the secret divorce and award of custody to the mother, 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, especially

in the absence of 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 considerations 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 Court also made clear that there “is no absolute 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 between a parent and a non-parent was

in In re Adoption of Female Child, 896 S.W.2d 546 (Tenn. 1995). In that case, a mother, believing

that she could not take proper care of her daughter, asked another couple “to assume temporarily the

responsibility of caring for the child.” When that couple later petitioned to have custody of the child,

the mother initially agreed, not fully understanding that she was surrendering full custody. When

the mother realized her mistake, however, she challenged the petition. Although the trial court later

awarded conditional custody to the mother, the Court of Appeals reversed and awarded custody to

the adoptive couple, finding that the child’s best interests were served by her remaining with the

adoptive couple.

We reversed the judgment of the Court of Appeals, finding that the Tennessee Constitution,

through its right of parental privacy, protects 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 cases between parents and non-parents

generally:

Therefore, in a contest between a parent and a non-parent, a parent cannot be

deprived of 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 “best interest of the child” evaluation in making a determination

of custody.

Id. at 548. 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 In re

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 history of this case was quite complex, the order initially removing custody from the

natural mother did not find that the mother was unfit, 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 mother’s] fundamental right to privacy.” Id. at 5.

Importantly, we further stated that “[i]n the absence of such a valid initial order, we believe that it

would be unconstitutional for the natural mother to bear the burden of proving the absence of

substantial harm.” Id.

Examining the principles applied in each of these 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 without notice to the parent; (3) when the order

transferring custody from the natural parent is invalid on its face; and (4) when the natural parent

cedes only temporary and informal custody to the non-parents. Consequently, when 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 claims of custody by non-parents.

Importantly, however, none of these previously recognized circumstances giving rise to the

superior rights doctrine exists in this case. Instead, we are asked today to decide whether a fifth

circumstance also warrants application of that doctrine: when the order transferring custody from

the natural parent is valid in all respects, even though it results from the natural parent voluntarily

surrendering full and custody of the child to the non-parent. 

Though we have broadly recognized that the right of parental privacy in this state 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 case law, suggests that the superior rights doctrine should assist a parent to

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 give custody of the child to a non-parent. Because all

of our prior cases discussing awards of custody to a natural parent from a non-parent have been those

in which the initial transfer of custody from the natural parent was not accomplished with 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 dissent in this case makes the same mischaracterization of our prior

precedents as Mr. Blair. Quoting In re Knott, 138 Tenn. 349, 197 S.W. 1097 (1917), the dissent

maintains that natural parents “cannot be deprived of [the right to the care 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 attempted to fully terminate a father’s parental rights in an adoption

proceeding, without making the father a party to the suit or even giving the father notice of the

proceeding. As applied to this case, therefore, Knott stands as questionable authority to assert that

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

Moreover, although the dissent quotes eloquent language from cases addressing the nature

of parental rights generally, none of these cases addresses 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. Granville, 530 U.S. 57 (2000) (addressing

parental rights to limit grandparent visitation); Parham v. J.R., 442 U.S. 584 (1979) (addressing

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 religious beliefs); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (addressing

parental rights to the education of their children); Lehr v. Robertson, 463 U.S. 248 (1983)

(addressing the scope of parental rights in an adoption proceeding);Hawk v. Hawk, 855 S.W.2d 573

(Tenn. 1993) (addressing parental rights to limit grandparent visitation). The sole exception is

Petrosky v. Kenne, 898 S.W.2d 726 (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

with custody modification cases in which (1) a valid order awarding custody to a non-parent exists;

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-PARENT

In arguing for the application of the superior rights doctrine, Mr. Blair does not specifically

address what effect the presence of a valid court order awarding custody of Joy to her grandmother

should have upon 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 rights doctrine is not applicable when a natural parent seeks to modify a custody

arrangement established by a valid order. Instead, these courts focus upon whether the 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 must still “make the same

threshold showing of a substantial change in circumstances as in a parent-parent case[.]” After

reviewing cases from other jurisdictions, the court noted that “the modern rule is to impose the same
-9-

changed-circumstances requirements on parents who seek to modify a nonparent’s court-ordered,

permanent custody as on parents who seek to modify parental custody.” 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 proof in change-of-custody cases, the Court answered that 

[o]nce a court has properly transferred custody from a parent to a nonparent, it does

no good to apply the [parental preference] doctrine to weaken the substantial change

requirement for modification. The proceeding that gave the nonparent custody will

have enabled the parent to exercise the parental preference, and achieved the goal that

leads us to treat parent-nonparent cases differently from other custody cases. Having

once protected the parent’s right to custody, at the risk of sacrificing the child’s best

interests, we should not then sacrifice the child’s need for stability in its care and

living arrangements by modifying those arrangements more readily than in a parentparent case.

Id. (emphasis added). Consequently, while a parent is entitled to the presumption of superior rights

in the initial custody determination, the Alaska courts will not permit that parent 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

role of 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

show that the modification of custody was in the best interests of her children. In discussing the

effect of the superior rights doctrine in modification cases, the court stated that 

in an original custody proceeding, the court must heavily favor the parents by reason

of the rebuttable [superior rights] presumption. If a nonparent rebuts the presumption

in the original custody determination, the parents in a subsequent 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 previous consent order that awarded custody of his child to two distant

relatives. Although the father argued that a natural parent was entitled 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-considered” 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 affirmed, holding that the “compelling reasons” test did not apply in

modification proceedings. Instead, the court concluded that a best-interests-of-the-childanalysiswas

more appropriate given “the desirability that there be an end to litigation where a party has

previously had a full and fair opportunity to litigate and the undesirability of changing the child’s

established mode of living except for imperative reasons.” Id. at 371 (internal quotations omitted).

As such, the court concluded that 

“[a]t a subsequent hearing to change custody awarded by a ‘nonconsidered’ decree

we find that the burden of proof should be on the party seeking the change and the

standard should be the same as is applicable in custody disputes between parents.

Thus the natural [parent] who is seeking a modification of the consent judgment 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 proceedings 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 the care and custody of their children, no constitutional

principle demands that natural parents again be afforded a presumption of superior rights in a

subsequent modification proceeding. Of course, where an initial order does not exist, or is otherwise

invalid, then the Constitution requires a court to apply the superior rights doctrine. However,

because these circumstances do not 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 VOLUNTARY PARENTAL CONSENT 

TRANSFERRING CUSTODY 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 consent to relinquish custody of his daughter has upon his ability to claim this

supposed constitutional entitlement. In our view, though, the father’s voluntary decision to give

custody of his daughter to her grandmother only further undermines his argument that the

Constitution commands application of the superior rights doctrine in this custody modification

proceeding.
-11-

Several other jurisdictions have agreed that a parent’s voluntary consentto relinquish custody

of a child to a non-parent will nullify the effect of the superior rights doctrine in a custody

modification proceeding. For example, in Price v. Howard, 484 S.E.2d 528, 537 (N.C. 1997), the

North Carolina Supreme Court recognized that parents have the right to the care and custody of their

children, but it 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 inconsistent with this presumption or if he 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 constitutionally protected 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 Court concluded that the voluntary

relinquishment of indefinite custody to a non-parent was an example of conduct that was inconsistent

with the parent’s constitutionally protected 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 Alabama Supreme Court

recognized that “[a] natural parent has a prima facie right to the custody of his or her child.”

However, the court 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-parent or the other

parent], the custody of h[er] infant child by fair agreement, which has been acted

upon by such other person to the manifest interest and 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 recently considered the proper standard

to be applied in custodymodification 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 after having earlier

agreed to give full custody of them to their paternal grandparents. The court first noted that “[o]ur

law clearly 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

 Importantly, the dissent maintains that “parents in many cases may make custodial d ecisions w ithout fully

understanding the legal ramifications of their choices.” Characterizing the voluntary waiver of parental rights 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

relinquishment of custody must be made with knowledge of the consequences of that decision. Where a natural parent

volunta rily relinquishes custody without knowledge of the effect o f that act, then it cannot be said that these rights were

accorded the protection demanded by the Constitution. As such, application of the superior rights doctrine in a

subsequent modification proceeding would be justified. 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 relinquishes

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 examination of the

parent’s interests. Rather, it recognized that a voluntary relinquishment of custody by the parent

demanded consideration of other interests.

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

non-parent defeats the ability of that parent to later claim superior parental rights in a subsequent

proceeding to modify custody. Presuming that a parent is afforded the opportunity to assert superior

parental rights in the initial custody proceeding, then the parent’s voluntary transfer of custody to

a non-parent, with knowledge of the consequences of that transfer, effectively operates as a waiver

of these fundamental parental rights.3

 Under these circumstances, therefore, the Constitution does

not again 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

Based on our prior case law interpreting Article I, section 8 in this context, and given the

overwhelming authority from other jurisdictions on this issue, we conclude that our Constitution

does not accord natural parents a presumption of superior rights to modify an existing and valid

order of custody, even when that order results from the parent voluntarily agreeing to give custody

to the non-parent. Though strong in many respects, no aspect of the fundamental right of parental

privacy is absolute, and a parent who is given the opportunity to rely upon the presumption of

superior rights in an initial custody determination may not again invoke that doctrine to modify a

valid custody order. Absent proof of the custody order’s invalidity or proof that the parental 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 probably more so, than the parent’s interest in having

custody of the child returned. 

Accordingly, we hold that a natural parent is not generally entitled to invoke the doctrine of

superior rights to modify a valid custody order awarding custody to a non-parent. Instead, in the
4

 In a similar vein, the dissent repeats in several places that our failure to recognize the doctrine of superior

parental rights in a custody modification proceeding somehow represents “undue government interference” with a

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

of custody, except upon a showing that a change in circumstances shows that such a change is in the best interests of

(continu ed...)

-13-

absence of extraordinary circumstances—for instance, the natural parent was not afforded an

opportunity to assert superior parental rights in the initial custody proceeding; the custody order is

invalid on its face; the order is the result of fraud or procedural illegality; or the order grants only

temporary custody to the non-parents—a trial court should apply the standard typically applied in

parent-vs-parent modification cases: 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. Granville, 530 U.S. 57, 68 (2000) and Parham v. J.R., 442 U.S. 584 , 602

(1979), the dissent in this case posits that we have failed “to acknowledge the widely-accepted

‘presumption that fit parents act in the best interests of their children.’” Notwithstanding the fact

that these cases are wholly inapposite—they address parental rights to limit grandparent visitation

and to commit their children to civil institutions—we disagree that our decision today fails to

acknowledge this important presumption in child custody cases. To the contrary, we have reaffirmed

this presumption as an essential part of the superior rights doctrine. However, as we have gone to

great lengths to demonstrate, this presumption shapes the initial decision of custody, and where a

valid order exists transferring custody of a child away from a natural parent, the Constitution does

not again compel that this presumption be 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 forever penalize parents whose

decision to surrender custody 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,

and in no way do we “forever” foreclose the possibility that a parent will be unable to regain custody

of the child. 

However, our decision today does recognize that the parental rights given great weight in

initial custody determinations must be balanced with other interests once a valid custody order is in

place. In our view, the dissent gives too little weight to the interests of the child in a stable and

secure environment, and it risks subjecting the 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 custody 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 natural parent? We see

no compelling reason why the Constitution would command otherwise, provided that the rights of

the parent were protected in the initial determination.4
4

 (...continued)

the child, is hardly an “undue” or “unwarranted” state interference with pare ntal rights. Ra ther, the use of a bestinterests standard is entirely “warranted” in this context because it recognizes that the existence of a valid order of

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

5

 Contrary to the standard advocated by M r. Blair’s, the dissent in this case argues for the adoption of a

standard that would place the burden of proof upon the non-cu stodial natu ral parent to show that a change of custody

would not substantially harm the child. This standard may indeed eliminate the similarity of modification proceedings

to a show-cau se process, but one may legitimately question whether forcing the natural parent to prove a negative

propo sition effectiv ely adva nces that p osition. 

More importantly, however, the standard proposed by the dissent is still w holly focused on the interests of the

parent, with virtually no attention given to those of the child. Although discounted by the dissent, Mr. Blair’s voluntary

relinquishment of custody is significant because the waiver of his custodial rights, confirmed in a valid order of custody,

significantly diminishes the constitutional importa nce that the se rights would have otherwise assumed. Consequently,

the child’s interests in a stable and secure environmen t take on a more dom inant role here in determining whether the

father is entitled to have custody returned, and as such, we should also look to th ese interests in deciding whethe r to

modify the valid order of custody.

-14-

Moreover, generally applying the superior rights doctrine in custody modification

proceedings as advocated by Mr. Blair would present practical problems for the administration of

justice in this state. In giving effect to this doctrine in modification cases, Mr. Blair would

essentially have us create a situation analogous to a show-cause process in which the custodial nonparent would have to show cause why the child should not be returned to the natural parent. In such

a case, the natural 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 show that a change in

custody would result in substantial harm to the child. 

We believe that such a 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 custody of this child, it would be

concluding that final orders of custody are worthless and that the custodian of a child

could have no confidence in the court process since, upon demand of the natural

parent, the legal custodian would bear the burden of proving that extraordinary

circumstances required their continuing to have custody of the infant child.

Requiring such a burden of proof to be borne by the respondents in a proceeding to

modify a custody order would practically render the initial custody determination a

Pyrrhic victory for the non-parent.

Darlene S. 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 STANDARD 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.3d 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 of circumstances 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 bond between

parent and child is not typically deemed a material change in circumstances warranting a change 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

because “[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 combination with other factors,

support a finding of a material change in circumstances. However, the record here fully supports

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

and a caring environment. Indeed, no doubt because of these encouraging circumstances, Joy has

excelled academically and has become involved in a variety of school and church programs.

Because Joy’s present environment with Ms. Badenhope is not one that adversely 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 carefully reviewing the record 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 arrangement.

See Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984) (stating that the standard of review of

factual findings in child custody cases is “de novo upon the record of the trial court, accompanied

by a presumption of the correctness of the finding, unless the preponderance of the evidence is

otherwise.” (citing Tenn. R. App. P. 13(d)). Therefore, we affirm the judgments of the lower courts

not to grant Mr. Blair’s petition to modify the previous custody order awarding custody of Joy to Ms.

Badenhope.
-16-

CONCLUSION

In summary, we hold that 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 custody to the non-parent. Instead, a natural parent seeking to modify a custody

order granting custody to a non-parent must show 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