FILED

October 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

SARAH MOORE ) SULLIVAN COUNTY

 ) 03A01-9708-CH-00382

Plaintiff-Appellee )

)

)

v . ) HON. JOHN S. McLELLAN, III,

) JUDGE

)

ARCHIE T. MOORE, III )

 )

Defendant-Appellant ) VACATED and REMANDED

JAMES H. BEELER OF KINGSPORT FOR APPELLANT

TIMOTHY R. WILKERSON OF KINGSPORT FOR APPELLEE

 O P I N I O N

 Goddard, P.J. 

Appellant, Archie T. Moore, III, appeals the Chancery

Court’s judgment that it lacked jurisdiction as a matter of law

to address the issue of child custody in a divorce proceeding

because Mr. Moore is not the biological father of Brittney Moore,

the child in question. The Chancery Court left the child in the

custody of her mother, Ms. Sarah Moore, the Appellee and former

third wife of Mr. Moore. 
2

By his appeal, Mr. Moore contends that the Chancery

Court does have jurisdiction to determine the issue of custody

between the two parties. Furthermore, Mr. Moore requests that

this Court award him custody of Brittney outright or for the case

to be remanded for further consideration.

Ms. Moore’s brief does not challenge Mr. Moore’s

position on the issue of jurisdiction. Instead, Ms. Moore offers

two key arguments. First, that this Court should follow the

legal presumption favoring a biological parent’s custodial rights

over the interests of a third party by allowing her to maintain

custody. Second, that a trial court must weigh the evidence of

parental fitness using a clear and convincing standard of proof

when deciding a custody dispute between a biological and nonbiological parent. 

In addition, Ms. Moore moved for a dismissal of Mr.

Moore’s appeal because he twice failed to file his appellate

brief on time. First, Mr. Moore violated Rule 29 of the

Tennessee Rules of Appellate Procedure because he did not serve

and file his brief within 30 days after the record was filed with

the clerk on November 25, 1997. Second, even though this Court

granted Mr. Moore until April 1, 1998, to file his brief, it was

filed two days late because his attorney used regular mail to

submit the brief. In order to comply with the Rules of Appellate

Procedure, certified mail must be used to file a brief with the
1

Although Mr. Moore’s brief was twice filed late, this Court has

power under Rule 2 of the Tennessee Rules of Appellate Procedure to suspend

the requirements for filing an appellate brief on time. Good cause exists

because the subject of this appeal is child custody. Even so, the Appellant’s

attorney should understand that he offered no credible excuse for his failure

to file the brief within the time generously allowed by both Rule 29 and the

Court’s Order of March 17, 1998. In order for our system of justice to run

efficiently, each player must know the rules of the game. 

3

Court Clerk on the date the brief was mailed. We do not find

this motion to be well taken and it is denied. 1

The facts of this case, while intriguing, are not in

dispute on appeal. Briefly stated, Ms. Moore filed a petition

seeking a divorce from her husband on the grounds of

inappropriate marital conduct including physical abuse. Mr.

Moore filed a counter-claim seeking divorce because of his wife’s

ongoing promiscuous sexual activity with other men. Both parties

sought custody of Brittney and Carilea, who was their natural

child.

In his answer, Mr. Moore alleged that Ms. Moore told

him he was not the father of Brittney, their oldest child

conceived before marriage, but born after their union. Because

of the allegation, Mr. Moore requested blood testing to determine

parentage. This test showed Mr. Moore was not the father of

Brittney. At trial, both parties stipulated to this evidence. 

In his judgment, the Chancellor held he had no

jurisdiction to make an award of custody in respect to Brittney,

because of the lack of parentage. Mr. Moore was awarded the

divorce on his counter-claim and given custody of the younger
4

child. Subsequently, Mr. Moore filed this appeal to challenge

the Chancellor’s ruling on jurisdiction. 

I. Jurisdiction 

The first issue to be addressed is whether a trial

court has jurisdiction in a divorce proceeding to make an award

of child custody to a non-biological parent. The rule of law

that controls our determination was announced by the Supreme

Court in Lentz v. Lentz , 717 S.W.2d 876 (Tenn.1986). 

In Lentz , both parents sought a decree of divorce and

an award of custody of the children. During the proceedings,

however, it became clear that the husband was not the father of

the youngest child. Because of the lack of parentage, the

chancery court left custody of the youngest child with the mother

believing it had no jurisdiction to award custody of the child to

anyone other than the mother, when it was proven that the husband

was not the father of the child. 

The Supreme Court disagreed. The Court reasoned that

even if the chancellor must resolve a factual issue as to

paternity, that determination has no effect on the jurisdictional

limits of a court to protect the child. The child’s best

interests are of paramount concern, and that is where the

chancery court should focus its attention. Lentz , supra, citing

Bryan v. Bryan , 620 S.W.2d 85 (Tenn.App.1981); Bevins v. Bevins ,
5

53 Tenn.App. 403, 383 S.W.2d 780 (1964). See also Logan v.

Logan , 26 Tenn.App. 673, 176 S.W.2d 601 (1943). In its decision

the Court held:

Chancery court has jurisdiction of divorce

actions, and has the authority to decree

custody of minor children under the control

of either of the parties. The grant of

custody can be to one or both of the parties,

or to some suitable agency or person, as the

welfare and interest of the minor children

may require. . . . [A] finding that the

husband is not the father of one of the

children born during the marriage period does 

not affect the jurisdiction of chancery court to 

protect the child. 

Lentz, 717 S.W.2d at 877. 

In Lentz , the Supreme Court cited T.C.A. 36-6-101 as

further authority for its position. Any careful reader of T.C.A.

36-6-101(a)(1) will discover the statute allows the trial court

the flexibility to award custody during a divorce proceeding to

the parties to the proceeding or to “some suitable person, as the

welfare and interest of the child or children may demand.” 

Nowhere in the statute does it say that this suitable person must

be the biological parent of the child. A trial court, therefore,

may consider other suitable persons in its determination of the

award of child custody. The Legislature obviously anticipated

that complex custody cases would arise, and gave courts the
2

One common example of this complexity exists in cases that involve

step-parents who petition for a grant of custody. See Henderson v. Mabry , 838

S.W.2d 537 (Tenn.App.1992)(allowing the step-parent a temporary award of

custody). 

6

ability to address a child custody situation involving litigants

other than the natural parents. 2

We find the holding in Lentz and T.C.A. 36-6-101 to be

dispositive on the jurisdictional issue before the Court. It is

clear that the Chancellor did have jurisdiction to award custody

of Brittney to either the biological parent or the non-biological

parent in the divorce proceeding. Considering the alternative,

if the Court was without jurisdiction, there would be no

guarantee that Brittney’s interests would come first. A trial

court must consider the welfare and best interests of the child

as Lentz and T.C.A. 36-6-101(1)(a) make clear. 

II. Child Custody

The second issue we face is the custody of Brittney. 

Mr. Moore urges this Court to make an immediate award of custody

to him because it is clear that the Chancellor had jurisdiction

to make a proper determination at trial. He cites the Chancery

Court’s ruling as authority for this request in an attempt to

show that Ms. Moore is, in fact, unfit to serve as custodian for

Brittney. The Chancellor said of Ms. Moore:

I find by my own observations, as well as the

testimony of the Parties, that she has a

quick temper, that she is aggressive, that
7

she does get in people’s face, as I have

witnessed myself in the first day of the

hearing, is combative, and I therefore credit

the testimony of Mr. Moore and his witnesses

and do not credit the testimony of Mrs. Moore

in that regard. 

While this statement may appear to be conclusive as to whether or

not Ms. Moore is fit to serve as the custodial parent, in truth,

the statement merely tends to show that the Chancellor weighed

the evidence against Ms. Moore using the wrong burden of proof.

The Tennessee Supreme Court has established that an

objection to the fitness of a parent in a child custody dispute

between a natural parent and a third party can only be sustained

by a clear preponderance of convincing proof. Stubblefield v.

State ex rel. Fjelstad , 171 Tenn. 580, 106 S.W.2d 558 (1937)

(using this standard to deny custody to deceased ex-wife’s

relatives in favor of father of the child). Other Tennessee

courts have applied this heightened standard of proof when faced

with the issue of parental rights, child custody, and third party

interests. See Henderson v. Mabry , 838 S.W.2d 537 (Tenn.

App.1992) (applying this standard to a custody dispute between

the natural father and the step-father); Dunavant v. Dunavant , 31

Tenn.App. 634, 219 S.W.2d 910 (1949) (granting exclusive custody

to father over the petition of maternal grandmother). In order

for Mr. Moore to sustain his objection to Ms. Moore’s fitness as

a parent, we hold that the clear preponderance of convincing

proof standard must be applied by the Chancellor to the evidence

presented in this custody dispute.
3

Normally this Court would review the evidence submitted at trial

de novo. See Smith v. Smith , 188 Tenn. 430, 220 S.W.2d 627 (1949). The

Appellant, however, failed to present this Court with the complete trial

record on appeal. 

8

From a review of the limited record before us, it does

not appear the Chancellor considered this heightened burden of

proof when making his ruling. All that can be gleaned from the

Chancellor’s statement is that at the most one party and his

witnesses were more credible than the other party and her

witnesses. 3 The question that remains unanswered is “By how

much?” The word “credit” simply does not indicate a quantum of

proof sufficient enough to satisfy the heightened burden present

in this child custody dispute. 

As to Ms. Moore’s other argument, we agree that

Tennessee courts do endorse the legal presumption favoring a

natural parent in a child custody dispute as to third parties,

but the courts have deferred to this presumption only so far as

other considerations remained equal. Stubblefield v. State ex

rel. Fjelstad , supra; Dunavant v. Dunavant , supra. See also

Doles v. Doles , 848 S.W.2d 656 (Tenn.App.1992). One such basic

consideration is the fitness of the parent. If the Chancellor

should find that Ms. Moore is unfit to serve as custodian using

the proper burden or proof, then the legal presumption fades, for

the welfare and best interests of the child remain any court’s

chief concern. This presumption, therefore, should inform the

Chancellor’s ruling on the evidence, not control it.
9

The judgment as to custody is vacated and the cause is

remanded for further proceedings consistent with this opinion and

collection of costs below. Costs of appeal are adjudged against

Ms. Moore. 

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Charles D. Susano, Jr., J.

________________________________

William H. Inman, Sr.J.