Hawk v. Hawk

Citation855 S.W.2d 573
PartiesB.F. HAWK, Jr. and Sue Hawk, Petitioners/Appellees, v. Robert S. HAWK and Bay K. Hawk, Respondents/Appellants.
Decision Date01 June 1993
CourtSupreme Court of Tennessee

Marvin B. Berke, Chattanooga, for appellants.

Phillip C. Lawrence, Chattanooga, for appellees.

Charles W. Burson, Atty. Gen. & Reporter, Dianne Stamey Dycus, Asst. Atty. Gen., Nashville, for State.

OPINION

DAUGHTREY, Justice.

We granted review in this case primarily to decide the constitutionality of T.C.A. § 36-6-301 (1985), the Grandparents' Visitation Act, as it applies to the decision of these married parents to deny the paternal grandparents visitation with their grandchildren. Because we conclude that the application of the statute to the facts in this case violates the constitutional right to privacy in parenting decisions, under Article I, Section 8 of the Tennessee Constitution, we reverse the decision to award visitation to the children's grandparents.

We recognize that, under normal circumstances, children are "fortunate to have caring and loving grandparents, and ... that everything possible should be done to foster and maintain a close, loving relationship between the grandparents and the[ir grandchildren]." Clark v. Evans, 778 S.W.2d 446, 449 (Tenn.App.1989). The circumstances of this case were far from normal, however.

The record reflects a family history of bickering and personality clashes that ultimately resulted in a decision by the appellants, Bob and Bay Hawk, that neither they nor their children, Megan and Steven, would associate with Bob's parents, appellees Bill and Sue Hawk. A brief review of the facts is necessary to explain the situation that confronted the trial court when it granted the grandparents extensive visitation rights with their grandchildren, a decision that was affirmed by the Court of Appeals.

At the time of the initial petition, all of the parties resided in Chattanooga, Tennessee. Bill Hawk owned and operated a bowling alley where his son, Bob, also worked from 1985 until May 1989, when Bill terminated Bob's employment. During Bob and Bay's marriage, the two couples were frequently together, attending the same church, visiting on Sunday afternoons, and often visiting during the week. Bay and her mother-in-law, Sue, bowled together and spent Wednesday afternoons with the children. Moreover, the children were often permitted to spend the night with their grandparents. Before Steven was born, Megan spent two nights a week with her grandparents, but later each child spent one night a week with Bill and Sue. In addition, the grandparents often acted as baby-sitters for the children.

Despite these frequent visits, rifts developed between and among various members of the Hawk family. One of the primary clashes, originating even before Bob and Bay's marriage, seems to have arisen between Bay and her father-in-law. As time went on, their relationship deteriorated even further. Bay's testimony revealed, for example, her disapproval of Bill's methods of dealing with the children. On the other hand, Bob's testimony reflected his father's disapproval of Bay; after Bob and Bay's first argument, Bob said, his father recommended a divorce and publicly cursed Bay in Megan's presence. Bob testified further that his father frequently criticized him for not "standing up" to his wife "as a man." Bill, it appears, also disapproved of Sue's close relationship with Bay. After he had fired Bob from the bowling alley, this animosity resulted in a volatile scene in Bob and Bay's driveway that became so intense that Bay reported the incident to the police.

Among other things, there were serious disputes between family members about whether and how the children should be disciplined, disagreements about the children's activities and bed-time schedules, and the like. In addition to these problems, Bob and Bay feared the influence on their children of Bob's brother, Billy, a convicted drug violator who was around the children while they stayed with their grandparents. Moreover, after several of Bill's short trips with the children became long excursions, Bay and Bob required Bill and Sue to notify them before taking the children anywhere. Occasionally, the children were not permitted to visit their grandparents when these rules were broken. The relationship between the couples became more strained as these disagreements intensified.

In May of 1989, Bill terminated Bob's job at the bowling alley, citing Bob's poor job performance. Bob complained that his father had used the job as a blackmail tactic to gain control over Bob's family. After Bob's termination, Bill opposed Bob's unemployment compensation and proposed to buy up Bob and Bay's family cemetery lots in the family plot. It was at this point that Bill's relationship with the younger Hawks was essentially severed. A few months later, after an explosive family argument, Sue also ceased her relationship with Bob, Bay, and the children.

Christmas that year provided an unsuccessful attempt at reconciliation. The entire family gathered at Bill and Sue's house, where Bay's disapproval over Sue's seating arrangements resulted in a quarrel. After the holidays, Bill agreed to counsel with Bob and the church minister; however, Bob refused to counsel with a person whom he considered to be biased. Thus, no family counseling has occurred. Except for chance encounters, the families have apparently not been together since the end of 1989; Bob and Bay have refused to accept Bill and Sue's gifts for the children and have rebuffed their efforts to contact Megan and Steven. As a result, family relationships have dissolved into a state of entrenched animosity, and each party interprets the events leading to the separation differently.

Unable to see the children with their parents' approval, the grandparents sought court-ordered visitation with Megan and Steven pursuant to T.C.A. § 36-6-301, which allows a court to order "reasonable visitation" with grandparents if it is "in the best interests of the minor child." 1 Although the court did not find that Bob and Bay were unfit parents, it found their objections to visitation to be rooted in a family conflict that the court believed should not interfere with the children's relationship with their grandparents. The trial judge therefore ordered visitation for two full weekends in odd months, one weekend in even months, two weeks in the summer, and Thanksgiving and Christmas afternoons. Overriding the parents wishes, the court added that the grandparents "don't have to answer to anybody when they have the children." The court elaborated:

They can take the children to visit friends of theirs, they can have friends in to visit with the children. They can take the children anywhere they please. They can also take the children on vacation during the time that they have them for the two week period of time, and they're not restricted as to where they can take them, because the Court is fully convinced that they would not do anything or take these children anywhere that would adversely affect these children.

In making this ruling, the court imposed its own opinion of the "best interests" of the children over the opinion of the parents, who had agreed between themselves that visitation was inappropriate. 2 Although courts are commonly called on to resolve custody disputes between parents and to determine custody when parents are unfit, the trial court's interference with the united decision of admittedly good parents represents a virtually unprecedented intrusion into a protected sphere of family life. Because the statute, T.C.A. § 36-6-301 (1985), suggests that this level of interference is permissible, we examine the constitutionality of the statute as it applies to married parents whose fitness as parents is unchallenged.

The parents initially asserted the unconstitutionality of T.C.A. § 36-6-301 (1985) under the Fourteenth Amendment to the United States Constitution. This Court has asked that the parties also address the constitutionality of the statute under the Tennessee Constitution, with particular reference to Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), the case which acknowledged a right to privacy under the Tennessee Constitution. In light of this right to privacy, we believe that when no substantial harm threatens a child's welfare, the state lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. Thus, we find the statute to be unconstitutional under Article I, Section 8 of the Tennessee Constitution, as applied to this married couple, whose fitness as parents is unchallenged. This result relieves us of the necessity of addressing the constitutionality of the statute under the federal constitution and, accordingly, we pretermit this issue.

In determining the validity of the statute, we look first to the nature of the right at stake. Tennessee law has long held that

... a parent is entitled to the custody, companionship, and care of the child, and should not be deprived thereof except by due process of law. It is a natural right, but not an inalienable one. The parents are trusted with the custody of the child upon the idea that under the instincts of parental devotion it is best for the child.

State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898). This Court has further held that [t]he relations which exist between parent and child are sacred ones.... The right to the society of the child exists in its parents; the right to rear it, to its custody, to its tutorage, the shaping of its destiny, and all of the consequences that naturally follow from the relationship are inherently in the natural parents, and they cannot be deprived of these rights without notice, and upon some ground which affects materially the future of the child.

In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1...

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