Academic journal article The University of Memphis Law Review

Constitutional Law-Blair V. Badenhope: Parent V. Parent or Parent V. Non-Parent-The Tennessee Supreme Court's New "One Size Fits All" Standard for Modification of Valid Custody Orders

Academic journal article The University of Memphis Law Review

Constitutional Law-Blair V. Badenhope: Parent V. Parent or Parent V. Non-Parent-The Tennessee Supreme Court's New "One Size Fits All" Standard for Modification of Valid Custody Orders

Article excerpt

In November 1989, Susan Badenhope gave birth to her daughter, Joy, out of wedlock.1 Joy's father was Arthur Blair (Blair).2 When Susan Badenhope died of cancer in October 1990, Marilyn Badenhope (Ms. Badenhope), Susan's mother, assumed responsibility for Joy.3 Ms. Badenhope petitioned the court for custody of Joy in December 1990, and the court granted her temporary custody that same month.4 Initially, Blair contested the temporary custody order.5 Before the court could rule, Blair consented to give Ms. Badenhope custody of Joy, thereby voluntarily waiving his parental rights; however, Blair retained specific visitation rights.6

In April 1993, Blair petitioned for modification of the custody order based on a material change of circumstances.7 The court denied his petition in June 1995 based on a finding that Blair failed to show the required material change of circumstances for modification of a custody order, and the court of appeals upheld the decision.8 In July 1997, Blair filed yet another petition seeking custody of Joy, setting forth his allegedly stronger parent-child relationship with Joy as evidence of a material change of circumstances.9 In addition, Blair asserted that the doctrine of superior parental rights applied even in custody modification.10 Thus, Blair claimed that his status as Joy's biological father meant that denial of custody would require a finding that he was an unfit parent.11 In August 1999, despite acknowledging Blair as a fit parent and his growing relationship with Joy, the trial court again found no material change in circumstances and declined to modify the custody order.12 The trial court placed great weight on evidence that Joy was excelling in school and was an "outstanding, well-adjusted[,] happy, wonderful child."13 Further, the court ruled that "awarding custody to Mr. Blair would result in substantial harm to Joy."14 The court of appeals affirmed this decision, and the Tennessee Supreme Court granted permission to appeal.15

The Tennessee Supreme Court held, affirmed.16 Even though the parental right of privacy constitutionally entitles natural parents to a presumption of superior parental rights in initial custody proceedings, absent extraordinary circumstances, neither the Tennessee Constitution nor Tennessee case law entitles the parent to assert the presumption of superior parental rights to modify a valid custody order following a voluntary waiver of such rights. Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).

The Due Process Clause of the Fourteenth Amendment to the United States Constitution, as ratified in 1868, provided that "[no] state [shall] deprive any persons of life, liberty, or property, without due process of law . . . ."17 Decades earlier, however, Article I, section 8 of the Tennessee Constitution18 afforded the citizens of Tennessee this same protection against deprivation of life, liberty, or property.19 In Davis v. Davis,70 the Tennessee Supreme Court, examining the due process concept of liberty in both the U.S. Constitution and the Tennessee Constitution, concluded that the protection of individual liberty plays a central role in the Tennessee Constitution.21 The Davis court stated that "alone among American constitutions," the Tennessee Constitution so jealously guarded the individual liberty interests of its citizens that it provided them the right, "in the face of governmental oppression and interference with liberty," to resist intrusion on those interests "even to the extent of overthrowing the government."22

In addition to emphasizing the political autonomy provided by the Tennessee Constitution's Declaration of Rights,23 the Davis court found that protection of personal autonomy was implicit in Article I, section 8 and held that the "constitutional concept of liberty" provided a constitutional right of privacy for Tennessee citizens.24 Although the court acknowledged that "the drafters of the Tennessee Constitution of 1796 could not have anticipated the need to construe the liberty clauses of that document in terms of the choices" that courts face in modern times, the court never questioned whether the drafters "foresaw the need to protect individuals from unwarranted governmental intrusion into matters . …

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