IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

September 9, 2008 Session

JACQUELINE HULS, ET AL. v. JASON N. ALFORD, ET AL.

Appeal from the Chancery Court for Coffee County

No. 06-342 Allen W. Wallace, Senior Judge

No. M2008-00408-COA-R3-CV - Filed October 22, 2008

This lawsuit was filed by Jacqueline and Jonathan Huls (“Petitioners”) seeking court-ordered

visitation with their grandson pursuant to Tennessee’s Grandparent Visitation Act, Tenn. Code Ann.

§ 36-6-306. The lawsuit was filed against Jason Alford (“Father”) and Leeanna Alford (“Mother”),

the biological parents of Petitioners’ grandson. At trial, both parents testified that they had not and

still did not oppose visitation between Petitioners and Petitioners’ grandson. Although comments

made by the Trial Court support an implicit finding by the Trial Court that the parents did not oppose

visitation, there was no express determination made on this particular issue. Following the trial, the

Trial Court entered an order granting the petition and establishing a visitation schedule for

Petitioners. We conclude that the testimony at trial preponderates in favor of a finding that the

parents did not and do not oppose visitation. We further hold that in order for Tenn. Code Ann.

§ 36-6-306 to be implicated, visitation by grandparents must be “opposed by the custodial parent or

parents.” Tenn. Code Ann. § 36-6-306(a). Because we find that the parents do not oppose visitation,

the statute is not implicated, and the Trial Court erred by not dismissing this case. We, therefore,

reverse the judgment of the Trial Court, and this case is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Chancery Court Reversed; Case Remanded

D.MICHAEL SWINEY,J., delivered the opinion of the court, in which HERSCHEL P.FRANKS,P.J., and

SHARON G. LEE, SP. J., joined.

Jeffrey D. Ridner, Tullahoma, Tennessee, for the Appellants, Jason and Leeanna Alford.

Thompson G. Kirkpatrick, Manchester, Tennessee, for the Appellees, Jacqueline and Jonathan Huls.

Robert E. Cooper, Jr., Attorney General and Reporter, and Elizabeth C. Driver, Senior Counsel, for

the Appellee, State of Tennessee.
 Mother and Father will be referred to collectively as “Respondents” or “Parents.” 1

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OPINION

Background

Mother and Father were divorced in August of 2007, and they have one child, Joshua

(“the Child”), who was born in November of 2004. Mother and Father submitted a parenting plan

which was approved by the Trial Court, and they were granted a divorce based upon irreconcilable

differences. In the parenting plan, Mother was designated as the Child’s primary residential parent

and Father’s co-parenting time was set forth. 

Approximately three weeks after Mother and Father were divorced, Mother’s parents,

Petitioners, filed a petition pursuant to the Grandparent Visitation Act seeking court ordered

visitation with their grandson. Petitioners sued both Mother and Father. Petitioners alleged: 1

That the Respondents were divorced by decree of this Court

on August 7, 2007 and a corresponding Parenting Plan between the

parents [was] entered by this Court.

That the minor child resided in the home of your Petitioners,

along with the Respondent mother, for a period in excess of twelve

(12) months from April 2005 until March 2007. 

That your Petitioners played an integral role in the childs (sic)

life since birth and have performed many functions as a caretaker

including but not limited to providing financial support, potty training

the child, staying up at nights with the minor child, taking the minor

child to doctor appointments, [and] cooking for and bathing the minor

child.

That without just cause and without any rational justification,

the Respondent mother has attempted to sever this relationship and

has refused to allow your Petitioners contact with or access to the

minor child. 

That the child and your Petitioners have maintained a

significant existing relationship for an excess of twelve (12) months

preceding the severance of the relationship, and this relationship was

severed by a parent or parents for reasons other than abuse or

presence of a danger or substantial harm to the child, and the

severance of this relationship is likely to cause substantial emotional

harm to the minor child. 
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Parents filed a motion to dismiss challenging the constitutionality of the Grandparent

Visitation Act. Parents claimed that the provisions of Tenn. Code Ann. § 36-6-306 were in violation

of the Tennessee State Constitution; specifically, Article I, Section 8. Parents asserted that the

statute violated their constitutional right to the custody, care and control of the Child. The motion

to dismiss also notified the Attorney General that the constitutionality of Tenn. Code Ann. § 36-6-

306 was being called into question.

Following a hearing, the Trial Court entered an order concluding that the Grandparent

Visitation Act did not impermissibly violate Parents’ constitutional rights to the custody, care and

control of the Child. According to the Trial Court:

[T]he Court finds that Tenn. Code Ann. § 36-6-306 is constitutional

under both the United States and Tennessee Constitutions.

The United States Supreme Court, in addressing the issue of

non-parental visitation statutes, has held that a statute which allowed

any third party to petition for visitation at any time was facially

constitutional. Troxel v. Granville, 120 S.Ct. 2054, 530 U.S. 57, 147

L.Ed.2d 49 (2000). Moreover, the Court refused to require a showing

of harm to a child before a court could intrude into the sphere of

family privacy and order visitation with a nonparent. Troxel, 120

S.Ct. at 2064. Because the Tennessee Supreme Court had previously

ruled that such a showing of harm was required, Hawk v. Hawk, 855

S.W.2d 573, 575 (Tenn. 1993), the Tennessee Supreme Court has set

a higher constitutional standard than that required by the United

States Supreme Court in Troxel. Accordingly, Tenn. Code Ann. § 36-

6-306 is constitutional under the United States Constitution. 

Under the Tennessee Constitution, the Tennessee Supreme

Court has required an initial showing of danger of substantial harm

to a child before the state may interfere in the form of court action to

order grandparent visitation. Hawk v. Hawk, 855 S.W.2d 573, 577,

579-580 (Tenn. 1993). Because the current version of Tenn. Code

Ann. § 36-6-306 requires a showing of harm before a court can order

grandparent visitation, it fully comports with the requirements of

Hawk, and is facially constitutional.

Finally, [Parents] submit that Tenn. Code Ann. § 36-6-306 is

unconstitutional as applied to them because it allows grandparents to

petition for visitation when the parents of the child are divorced.

However, the statute still requires that the grandparents prove a threat

of harm to the child before a court can order grandparent visitation.
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Accordingly, the statute does not treat married parents differently

from divorced parents, and is constitutional as applied to [Parents].

Because the Trial Court determined that the statute was constitutional, a trial on the

merits was necessary. The trial took place on January 8, 2008, with the first witness being Petitioner

Jacqueline Huls (“Huls”). Huls testified that Mother and the Child lived with her from April of 2005

until March of 2007. Huls acknowledged that her relationship with Mother recently became strained

because Mother believed Petitioners did not like Mother’s new boyfriend, J.D. This occurred

because Mother wanted Huls to let J.D. spend the night with Mother at Huls’ house. Because

Mother then was not yet divorced from Father, allowing J.D. to spend the night went against the

legal advice of Mother’s divorce attorney. Because Huls would not allow J.D. to spend the night,

Mother began looking for another place to live and eventually moved out in March of 2007.

When asked if Mother had expressed concerns about Huls having overnight visitation,

Huls stated:

The last couple of conversations that we’ve had, the things

that she says that she’s upset with us about are we didn’t listen and do

things with [the Child] the way she wanted us to do it; we didn’t put

him to bed on time; he stayed up late a few nights; there was an issue

about us going to Murfreesboro while she was at work and we

weren’t in town when she got off work.... 

Huls testified that there also was friction between her and Father. At the beginning

of the divorce proceedings, Huls would meet Father and take the Child to him so he could exercise

his co-parenting time. Father apparently was to be taking medication and Huls did not have to turn

the Child over to Father if he could not show documentation that he had taken the medication. One

time Father refused to show Huls the required documentation, and Huls refused to let Father leave

with the Child. The police were called and when Father showed the police documentation that he

had taken his medicine, Father was allowed to leave with the Child. After that, it was decided that

the exchange for visitation would take place at the police department. Unfortunately, there were two

police departments. At the next exchange, Huls was at one police department, and Father was at the

other. Mother informed Huls that Father was at the other police station, and Huls proceeded to take

the Child to the police department where Father was waiting. Father commented to Huls that he

would appreciate it if Huls would be on time in the future. Huls admitted that she said “F-U” to

Father and walked off. Huls admitted saying “F-U” to Father more than once.

Huls testified that she filed the petition for grandparent visitation because she wanted

to see the Child. When asked about Mother wanting Huls to see the Child on Mother’s terms, Huls

stated:

[W]e called for a while every weekend. We’d say, “Can we

get – You know, we’d like to see Josh this weekend.” And every
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single time her response was, “Can J.D. come too? Can J.D. come

too?” I don’t want to see J.D., I want to see [the Child]. My

visitation with [the Child] should not have any bearing on what I feel

about her boyfriend.... 

Huls was questioned further on cross-examination as to the contact she has had with

the Child following Mother’s divorce from Father. This testimony is as follows:

Q. Now, isn’t it true, in addition to cussing [Father] at the police

station during these exchanges, that really your visitation with [the

Child], you want it to be how you [and your husband] want it, right?

A. I don’t want it to be just the way we want it. I want to see [the

Child]; I don’t want to see J.D. every time I see [the Child]; and I

don’t think that we need supervised visitations to see [the Child]. 

Q. Now, I’ve been coming up here several times and we’ve

talked about the contact that you have had with him. You have been

invited to have contact with [the Child], haven’t you, ma’am?

A. I have.

Q. Matter fact, within just about a week after you filed this

petition, your daughter called you and invited you and your husband

over to a swim party where she and [J.D.] lived at the apartment,

right?

A. Yeah.

Q. Y’all went to that, didn’t you?

A. We did.

Q. Spent some time with your grandson, didn’t you?

A. We did.

Q. Okay. After they finished swimming, [Mother] asked you to

go up to – asked you and your husband up for lunch, didn’t she?

A. She did.
 During this testimony various comments were made by the attorneys, to which the Trial Court responded. 2

Among other things, the Trial Court pointed out that : “[I]t seemed like the bottom line is nobody cares much about her

having visitation, but it’s the way you do it. . . . [W]hat I have got up to this point is that I – I don’t see much objection

to visitation but how you come about it. That’s what the issues seem like to me here.” 

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Q. Invited you up to eat some pizza up in their apartment, didn’t

they – 

A. Uh-huh.

Q. – to spend more time with your grandson? Y’all didn’t do

that, did you?

A. We did not. 

* * *

Q. Now, you were offered visitation within a week of filing this

petition, some of which you exercised, some of which you didn’t.

Then a week after that, were [Mother’s grandparents] down here

visiting?

A. They were.

Q. And were they all invited over to dinner at [Mother’s and

J.D.’s] place?

A. They were.

Q. You didn’t go?

A. I did not.

Q. In November you were invited to a birthday party?

A. Uh-huh.

Q. You went to that?

A. I did.2

* * *
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Q. Would you agree with me, ma’am, and I won’t go through

each single one, but you would agree with me that there have been

other times since the last one that I asked you about where you were

invited to come and visit [the Child] at their place? 

A. There were a couple of times.... 

Q. Okay. Did you go to either one of those?

A. No.

Father testified at trial that if Petitioners acted like adults, then it would be appropriate

for them to have visits with the Child. Father stated that he had no problem with Petitioners

exercising visitation but he does not believe it is appropriate for a court to intervene in decisions that

he and Mother are responsible for making. Father stated that when he and Mother were divorcing,

Petitioners acted “ugly” to him in front of the Child. 

Father had been prescribed antidepressants by a physician at the VA hospital. The

amount of medication Father was taking was phased down, and he currently is not taking any

antidepressants. When asked about the situation where Huls was bringing the Child to Father and

the police were called, Father stated that the police informed him that he could have Huls arrested

for assault, but Father chose not to have her arrested. When Huls was informed that Father could

press charges, Huls said, in front of the police officer and loud enough for the Child to hear, that she

“will kick his fuc**ng ass.” Father stated that on another occasion, Huls said “fu** you” and flipped

him off. 

Mother testified that she was 25 years old and was employed at the Manchester

Coffee County Conference Center. Mother acknowledged that after she moved out of Petitioners’

house, Huls would call asking to have visitation with the Child overthe weekend. Mother stated that

she worked during the week and often already had scheduled plans with the Child for the weekend.

Mother then discussed the various times she tried to invite Petitioners over to spend time with the

Child. She discussed the events described earlier in Huls’ testimony, such as the birthday party, the

swimming party, etc. Mother discussed the time when her grandparents were in town and she invited

Petitioners over for dinner, but they declined the invitation. According to Mother, every time she

talks to Petitioners about their visiting the Child, “[t]hey want to see [him] at their house by

themselves and that’s it, whichever time they choose, and it’s usually on a Saturday....” Mother

further testified as follows:

Q. [T]he times after you were served with this petition

you weren’t just dying to have your parents invited over to your place,

were you?

A. Not necessarily, no. 
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Q. But you did it for your son, right?

A. I did.

Q. And you did that because you thought that that kind of

contact would be in [the Child’s] best interest, right?

A. I thought it would be good for all of us, yes.

Q. Okay. And you continued to do that the week after

that, the next month, another time after that, and all the times that we

have talked about, is that right?

A. Yes.

Q. And you think that opportunity – Would you continue

to offer those opportunities?

A. I would. I would like to.

Q. And do you think that handling it in that fashion is in

the best interest, where you do have some say in what goes on?

A. Yeah.

Mother also testified that she and J.D. are engaged and plan on getting married.

Following the trial, the Trial Court entered an order granting Petitioners’ request for

visitation. The Trial Court found that: (1) the Child resided with Petitioners for a period of twelve

months or more and was removed from the home of Petitioners by Mother when she established her

own residence; (2) the Child has a significant relationship with Petitioners and the loss of that

relationship was likely to cause severe emotional harm to the Child; and (3) visitation with

Petitioners was in the Child’s best interest. After making these findings, the Trial Court entered a

very liberal visitation schedule. 

Parents appeal raising three issues, which we quote:

1. Whether the statutory provisions of Tenn. Code Ann. sec. 36-

6-306 are an unconstitutional intrusion upon the rights

afforded to [Parents] under Article I, Section 8 of the

Tennessee Constitution and the Fourteenth Amendment to the

United States Constitution?
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2. Whether a denial of visitation or severance of a relationship

between the minor child and the grandparents occurred so as

to implicate the provisions of Tenn. Code Ann. sec. 36-6-

306?

3. Whether the award of grandparent visitation was in the best

interest of the minor child?

Discussion

In Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006), our Supreme Court discussed

the standard of review in cases involving visitation, including grandparent visitation pursuant to

Tenn. Code Ann. § 36-6-306. According to the Court:

Appellate review of a visitation order is governed by an abuse

of discretion standard, with the child’s welfare given paramount

consideration. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Review of questions of law, including issues of statutory

construction, is de novo with no presumption of correctness attached

to the judgment of the trial court. State v. Tait, 114 S.W.3d 518, 521

(Tenn. 2003) (citing Beare Co. v. Tenn. Dep’t of Revenue, 858

S.W.2d 906, 907 (Tenn. 1993); Union Carbide Corp. v. Huddleston,

854 S.W.2d 87, 91 (Tenn. 1993)).

Smallwood, 205 S.W.3d at 361.

In relevant part, the Grandparent Visitation Act, codified at Tenn. Code Ann. § 36-6-

306, provides as follows:

Visitation Rights of grandparents. – (a) Any of the

following circumstances, when presented in a petition for grandparent

visitation to the circuit, chancery, general sessions courts with

domestic relations jurisdiction or juvenile court in matters involving

children born out of wedlock of the county in which the petitioned

child currently resides, necessitates a hearing if such grandparent

visitation is opposed by the custodial parent or parents:

* * *

(6) The child and the grandparent maintained a significant

existing relationship for a period of twelve (12) months or more

immediately preceding severance of the relationship, this relationship

was severed by the parent or parents for reasons other than abuse or
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presence of a danger of substantial harm to the child, and severance

of this relationship is likely to occasion substantial emotional harm

to the child.

(b)(1) In considering a petition for grandparent visitation, the

court shall first determine the presence of a danger of substantial

harm to the child. Such finding of substantial harm may be based

upon cessation of the relationship between an unmarried minor child

and the child’s grandparent if the court determines, upon proper

proof, that:

(A) The child had such a significant existing

relationship with the grandparent that loss of the relationship

is likely to occasion severe emotional harm to the child;

(B) The grandparent functioned as a primary caregiver

such that cessation of the relationship could interrupt

provision of the daily needs of the child and thus occasion

physical or emotional harm; or

(C) The child had a significant existing relationship

with the grandparent and loss of the relationship presents the

danger of other direct and substantial harm to the child.

(2) For purposes of this section, a grandparent shall be

deemed to have a significant existing relationship with a grandchild

if:

(A) The child resided with the grandparent for at least

six (6) consecutive months;

(B) The grandparent was a full-time caretaker of the

child for a period of not less than six (6) consecutive months;

or

(C) The grandparent had frequent visitation with the

child who is the subject of the suit for a period of not less than

one (1) year.

(3) A grandparent is not required to present the testimony or

affidavit of an expert witness in order to establish a significant

existing relationship with a grandchild or that the loss of the

relationship is likely to occasion severe emotional harm to the child.
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Instead, the court shall consider whether the facts of the particular

case would lead a reasonable person to believe that there is a

significant existing relationship between the grandparent and

grandchild or that the loss of the relationship is likely to occasion

severe emotional harm to the child.

(c) Upon an initial finding of danger of substantial harm to

the child, the court shall then determine whether grandparent

visitation would be in the best interests of the child based upon the

factors in § 36-6-307. Upon such determination, reasonable visitation

may be ordered....

Tenn. Code Ann. § 36-6-306 (Supp. 2008).

In Smallwood, supra, the Supreme Court discussed the important distinction between

awarding a non-custodial parent visitation versus awarding a grandparent visitation. The Court

stated:

Under section 36-6-301 of the Tennessee Code Annotated,

barring the likelihood of endangerment to the child, a court is

required to award visitation to a non-custodial parent: “After making

an award of custody, the court shall, upon request of the

non-custodial parent, grant such rights of visitation as will enable the

child and the non-custodial parent to maintain a parent-child

relationship....” In contrast, under the version of section 36-6-306 in

effect at the time this visitation petition was filed in February of 2003

and under the current version of the statute, prior to granting a

grandparent’s request for visitation, a court must find “the presence

of a danger of substantial harm to the child” if such visitation is

denied, Tenn. Code Ann. § 36-6-306(b)(1) (2005), and determine

whether such visitation would be in the “best interests” of the child,

id. at (c). The reason for this distinction in visitation rights is

well-established. Under both the United States and Tennessee

Constitutions, parents have a fundamental right to the control and

care of their children. Nash-Putnam v. McCloud, 921 S.W.2d 170,

174 (Tenn. 1996) (citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.

1208, 31 L.Ed.2d 551 (1972); Hawk v. Hawk, 855 S.W.2d 573 (Tenn.

1993)). In custody disputes we have recognized that the natural

parents’ rights are superior to those of third parties unless the parent

relinquishes his or her rights. Blair v. Badenhope, 77 S.W.3d 137,

141 (Tenn. 2002). Interference with this fundamental right is allowed

only when there is a compelling state interest in doing so.

Nash-Putnam, 921 S.W.2d at 174 (quoting Nale v. Robertson, 871
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S.W.2d 674, 678 (Tenn. 1994)). Visitation rights arise from the right

of custody and are controlled by the same constitutional protections.

See George L. Blum, Annotation, Grandparents’ Visitation Rights

Where Child’s Parents Are Living, 71 A.L.R.5th 99, 122 (1999).

These constitutional protections are reflected in the statutes governing

grandparents’ visitation rights.

* * *

Allowing a grandparent to procure visitation without first requiring

a showing of harm to the child if such visitation is denied not only

violates section 36-6-306(b)(1) which specifically requires such a

showing, it also constitutes an infringement on the fundamental rights

of parents to raise their children as they see fit. See Hawk, 855

S.W.2d at 581.

Smallwood, 205 S.W.3d at 361-63 (footnotes omitted and emphasis added). 

As set forth above, the very language of Tenn. Code Ann. § 36-6-306 is such that the

statute is not implicated unless “visitation is opposed by the custodial parent or parents.” As is clear

from Smallwood, there cannot be “the presence of a danger of substantial harm to the child” as

required by the statute unless visitation is denied. Without a denial of visitation, there simply cannot

be any resulting “danger of substantial harm to the child.” The term “opposed” includes situations

both where visitation is denied totally and where visitation is technically not opposed, but where the

frequency and/or conditions imposed by the parents on the visitation are such that it equates to a

denial of visitation. 

In the present case, the Trial Court never made a specific finding that either of the

Parents were opposed to Petitioners having visitation with the Child. While the Trial Court did point

out that Mother did not allow Petitioners visitation whenever they requested it, this does not amount

to a finding that visitation was opposed or that Parents have attempted to sever the relationship

between Petitioners and the Child. Indeed, the comments made by the Trial Court during the trial

show an implicit finding by the Trial Court that visitation was not opposed by parents, and the true

issue, in the Trial Court’s view, was the amount of visitation and where it was to happen. See supra

at n.2.

 

The undisputed testimony at trial by both Parents was that they did not oppose

visitation. This conclusion is reinforced by Huls’ testimony regarding the visitation that she and her

husband did have as well as her admission that they chose not to exercise visitation at other times.

We conclude that the facts preponderate in favor of a finding that Parents do not and

have not opposed visitation between Petitioners and the Child. Tenn. Code Ann. § 36-6-306 cannot

be used by grandparents who think they are entitled to more or different visitation in the absence of
 See generally Henderson v. City of Chattanooga, 133 S.W.3d 192, 215 (Tenn. Ct. App. 2003) (“our courts

3

will not decide constitutional issues unless resolution is absolutely necessary for determination of the case and the rights

of the parties.”).

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a finding that the parents actually or effectively “opposed” visitation. Because the facts preponderate

in favor of a finding that Parents did not and do not oppose visitation, the petition should have been

dismissed and the Trial Court erred when it entered an order establishing a specific visitation

schedule. Accordingly, the judgment of the Trial Court is reversed, and this case is dismissed.

In light of our resolution of the above issue, the remaining two issues, including the

constitutional challenge to the validity of Tenn. Code Ann. § 36-6-306, are necessarily pretermitted.3

Conclusion

The judgment of the Trial Court is reversed, and this case is dismissed. This case is

remanded to the Trial Court solely for collection of the costs below. Costs on appeal are taxed to

the Appellees, Jacqueline and Jonathan Huls.

___________________________________

D. MICHAEL SWINEY, JUDGE