# FILED Dec. 19, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

JERRELL Mc

VAY and ) CYNTHIA MARIE McVAY, ) ) Petitioner s/Appelle es, ) Shelby Juvenile No. 119707 ) STATE OF TEN

NESSEE, ) Appeal No. 02A01-9508-JV-00183 ) Intervenor, ) ) vs. ) ) SHARON BLEN, Custodial parent of ) LAUREN NICOLE McVAY, a minor ) ) Responde nt/Appell ant. )

APPEAL FROM THE JUVENI LE COURT OF MEMPHI S AND SHELBY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE K

ENNETH A. TURNER, JUDGE

For the Petitioner s/Appelle es: For the Defendant/Appellant : Robert Y. Jarvis Stevan L. Black Bartlett, Tennessee Kimberly Har ris Jordan Memphis, Tennessee For the Interve

nor : Charles W. Burson James H. Tucker, Jr. Nashville, Tennessee
REVERSED

HOL LY KI RBY LI LL ARD , J. CONCUR:

AL AN E . HI GHE RS, J

. HEW IT T P. TOM LI

N, JR ., SR . J.OPINION

This case arises under the Grandpa rents’ V isitation Act. The Pe titioners /Appelle es, Jerrell Mc Vay and Cy nthia Mar ie McVay (“Grandparent s”), file d a petitio n with the j uvenile c ourt fo r court-ordered

visitation with their paternal grandchild, Lauren Nicole McVay

. The Juvenile Court awarded visitation to the Grandparents, pursuant to the Grandparents’ VisitationAct. The child’s mother, Responde

nt/Appell ant Sharo n Blen ( “Mother ”), appe als th e tri al co urt’ s dec ision . We

reverse. Mother met Lauren’s fathe

r, Jeffrey Mc Vay (“

Father”) while they wer

e students in college. As a result o f their

relationship, Mother gave birth to their child, L auren. Mother and Father never

mar ried; however , Lau

ren was legitima

ted. Afte r award ing Mothe

r custody , the juve

nil e cour t ordered Father to pay

child support

and granted him visitation rights. Father exercised his visitation rights only sporadically , and the record reflects that he had not seen the child in well over a y ear at the time of trial in this cause. Despit e their so n’s lack of involvement with Lauren, G randparents wanted to develop a relation ship withher. Mother initially encour aged such a relationship, and Grandpa rents saw Lauren regula rly until she was approximately six years old. Mother testified that she and Grandparents then began to disagree about issues related to Lauren’s upbringing, such as medical treatment, re ligious train ing, and discipline. Finally, bec ause of these d isagreements, Mother determined that L auren should no longer visit Grandparents. Grandpare nt s t hen petit

ioned the juvenile court for courtordered visitation. After

a heari ng, the

juvenile court re feree found tha t visitation

with Gra ndparen ts would be in the b est inter

est of the child. Thi s fin ding was con firme d by the ju venil e court judge and Grandparents were awa rded visitation. From this order, Mother now appeals. On appeal, Mother argues that the Gra ndparents’ Visitation Act is unconstitutional as applied to the facts of this case, because it violates her right to privacy

to raise her child without unwarranted Statei ntervention . In the alternative, Mother c ontends that the trial court erred in finding that grandparent

visitation would be i n the child ’s best int erest a nd inawarding Grandparents visitation during Shabbiath services on Friday evenings and during the Christmas holiday

. Our review of the trial cou

rt’s find ings of f act is de novo upon the record and is accompanied by a presu mpti on of c orrect ness o f the f actual findi ngs unless the preponderance of the evide nce is otherwise. Tenn. R. A

pp. P. 13(d

). On que stions of la

w, of cou rse, our review i s de novo with no presumption of correctness. See Carv ell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995).1 The Grandparents’ Visitation Act was formerly codified at Tenn. Code Ann. § 36-6-301 but was transferred to § 36-6-302 by the legislature in 1995.

2 The Gra ndparen ts’ Visita tion Act pr

ovides asfollows: (a) The natu

ral or le gal g

ran dparents of an unmarried minor child may be granted reasonable visitation rights to the child during such child’s minority by a cou rt o f competent

jurisdiction upon a finding that such visitation rights w ould be in t

he best interest s of the minor

child. The provisions of

this subsection shall not apply in the case of an y c hil d who has been adopted by any person othe

r than a relative of the child or a stepparent of the child. Tenn. Code Ann. § 36-6-302 (1996). 1 The con stitutionality of the Act was addre ssed by the Tennessee Supreme Court in Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993). In Hawk , the trial court had denied the paterna

l grand parents ’ petition

for cour t-order ed visitat ion with their grandchildren. Id. at 575. This was affirmed by the Court of Appeals. Id. The Tennessee Supreme Court examined T ennessee case la

w rega rding th e right to privac y g

uaranteed under

Article 1, Secti on 8 of th e Tennessee Constitution and determined that “theright of parents to care for their children without unwarranted state intervention” is encompassed within the rig ht to privacy. Id. at 579. In light of this, the Court held

that the Sta

te canno t interfe

re with the paren

t-child r elationsh ip in an “i ntact, nuclear family with fit, married pa rents” and determine

what is in t

he best interest of the ch ild unless the court first makes a threshold finding that there is a substantial dang er of harm to the child. Id. Applying these principles, the Court in Hawk noted that the trial court did not find that the parents were unfit or that there was a substantial dang er of harm to the child. Id. at 576, 582. Without such a threshol d finding , the Cour t reasoned that “ the state lack[ed] a

sufficie ntly compelling justifica

tion for in

terfer ing with [t

he pare nts’] funda

me ntal right.” Id. at 5 82. It concluded

that the G

randpar ents’ Visitation Act was unconstitutional as applied to the facts in that

case and reve rsed the decision granti ng the g

randpar ents’ pe tition for visi ta tion. Id. Thus, under Hawk , the trial court must first ascertain whether the pare nts are unfit or whether the circumstances demonstr ate a substantial danger of harm to the child. Only after this initial finding may the trial court go on to determine whether g randparent visitation is in the best interest of the child. Subsequent

cases have app l ied th ese pri nci pl es t o di ffe ren t fa ctu al c irc um st anc es. In Simmons v. Simmons , 900 S.W.2d 682 (Tenn. 1995), the trial court awarded the natural mother a divorce from

the father and custody

of their child. Id. The order of divorce also included visitation to the paternal grandp arents. Id . The mother later remarried, and her new husband adopted the3

c hild. Id. After the mother denied vi sitation to

the gra ndparen ts, they moved tha

t she be held i n contempt for violating the court-orde r ed visitation. Id. at 682-83. The mother countered by petitionin g to terminate the grandparents’ visitation privileges. Id. at 683. The trial court denied the mother’s petition, and the Court of Appeals affirmed. Id. at 682-83. The mother then appealed to the Tennessee Supreme Court. Id. Th e grandparents in Simmons argue d that Hawk applied o nly to an inta

ct fami ly w it h married, natural parents whose fitness was unchallenged. Id. at 684. They insisted that “the divorc e of the child’s natural parents justifie[d] the state’s interference with the parenting decisions by

the mother and adoptive father.” Id. The Court recog nized that Hawk was distin guishab le in cer tain respec ts, but reasoned that “[t]he relationship between an adoptive parent and

child is no less sacred than the relationship between a natural pare nt and child” and is the

refore deservi ng of the

“same legal protection.” Id. In the absence of a threshold finding that there was a substantial dang er of harm tothe child , the Cour t held tha t the tria l court e rred in f ailing to grant t he pare nts’ petition to terminate the grandparents’ visitation privilege s. Id. at 685. In Floyd v. McNee ly , No. 02A 01-9408-CH-00187, 1995 WL 390954 (Tenn. App. July 5, 1995), this Court followed the principles utilized in Hawk and Simmons

. Id. In Floyd , the mother and father of the children were divorced. Id. at *1. The father died shortly after the divorce, and the mother remarried. Id. Her new husband did not adopt her ch ildren. Id. at *4. The children’s paternal grandmother filed a pe tition seeking visitation with the two children of her deceased son. Id. at *1. The

trial cou rt denie d the gr

andmothe r’s peti t ion, and she appealed. Id. On appeal, the Courtfocused on the mother’s fundamental right to privac y in raising he r ch ildr en and found that her husba nd’s fai lure to ta

ke steps t o adopt the

child did n ot diminish t

he mother ’s funda

mental privacy interest. Id. at *4. The Court stated that “the breakup of the nuclear family, in and of itself, [does not] con stitute a s ubstantia l harm to a

child suf ficient t o justify state inte rfere nce with a

fit parent’s decision to preclude a relationship between that child and his/her grandparents.” Id. Citing Hawk and Simmons , the Cour t reason ed that there wa s no justifi cation f or state interfe

rence b ecause there was no evidence of a substantial dang er of harm to the children. Id. Accordingly , the Court affirmed the decision of

the trial court dismissing the grandmother’s petition for visitation. Id. at *5. The facts of this case are distingu ishable f rom Floyd

in thatMother is not married and has4

never been mar

ried to L auren’ s father . Howeve

r, the Te nnessee Supreme C ourt has h eld that a parent’s fundamental liberty inter est in raising his or her

children is the same whether the child was born out of wedlock or inside the bounds of marriage. Nale v. Ro bertso n , 871 S .W. 2d 674, 678 (Tenn. 1994); see also Ru st v. Rust , 864 S.W.2d 52, 56 (Tenn. App. 1993) (holding that a custody award to one par

ent cre ates “single-pa

rent fa mily ” entitle d to sameconstituti onal prot ection a gainst unwarranted

state in ter fer enc e as an “ in tac t, two -pa ren t fa mi ly”) . In Floyd , this Court emphasized the mother’sfundame

ntal rig ht to privacy in ra

ising her children. I

n this case, Mother’s unmarried status does not diminish her fundamental privacy interest in raising Laur

en. Therefore, under Hawk , the trial court could not ord er visita tion with Gr

andpare nts inthe absence of a threshold finding that Mother wa s unfit or t

hat the c ircumsta

nces pre sented a

substantia

l dange r of har m. In t his ca se, Mo ther’ s fit ness a s a pare nt is not ch allen ged, an d ther e is no allega tion o f substantial danger of harm to the child. Under these circumstances, the trial court erred in granting visitation to Grandparents under the Grandparents’ Visitation Act. The Grandparents have emphasized that they do not wish to interf

ere with Mother’s par enting decisions and seek

only to continu e the lovi ng rela tionship the

y ha d establis hed with

Laur en. Thei r intentions and love for

Lauren have not be en questioned. However, unless the trial court determines that Mother is a

n unfit parent or that there is a substantial danger of harm to Lauren, the court ca

nnot substitute its judgment for Mother’s by or dering visitation with Grandparents. The decision of the trial court is rever sed, an d the McVays’ petition for court-ordered visitation is denied. Costs on appeal are taxed to Appel lees, f or which execution

may issue if

ne ce ss ar y.

HOLLY KIRBY LILLARD, J. CONCUR: ALAN E. HIGHERS, J.

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