IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

December 2, 2021 Session

IN RE AUTUMN H.

Appeal from the Juvenile Court for Williamson County

No. 35423 Sharon Guffee, Judge

___________________________________

No. M2020-01214-COA-R3-JV

___________________________________

This appeal involves a mother’s petition seeking to relocate to Canada with the parties’ 

minor child. Determining relocation to Canada with the mother to be in the child’s best 

interest, the juvenile court approved the mother’s petition, and the father appealed to this 

Court. Discerning no error, we affirm. 

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

Affirmed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Casey A. Long, Lawrenceburg, Tennessee, for the appellant, John G.

Joanne H., London, Ontario, Canada, Pro Se.

OPINION

Background

The mother, Joanne H. (“Mother”), is a Canadian citizen who came to the United 

States legally in 2006 or 2007. The minor child, Autumn H. (“the Child”), was born in 

July 2014 to Mother and the child’s father, John G. (“Father”). Mother and Father were 

never married. Mother testified that she had been a stay-at-home mother since the Child 

was born. At some point, a temporary restraining order was entered prohibiting Mother 

from leaving the state of Tennessee with the Child. In December 2015, the Williamson 

County Juvenile Court (“Juvenile Court”) entered an order leaving the temporary 

restraining order in effect but allowing Mother to take the Child to visit Mother’s family in 

03/29/2022
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Canada during the Christmas holiday but directing Mother to return the Child to this 

jurisdiction for further proceedings. 

Subsequently, Mother was unable to renew her work visa, and it expired in March

2016. Mother testified that she had a six-month grace period to leave the country. Mother 

and Father obtained a marriage license in June 2016, but the marriage did not happen. The 

parties subsequently entered into an agreed permanent parenting plan in September 2016, 

wherein the parents were to spend equal parenting time with the Child.

Mother sent a certified letter to Father in May 2017, informing him of her intended 

relocation with the Child to Canada. According to Mother, Father again asked her to marry 

him and gave her a ring. Father obtained a second marriage license but let it expire. Mother 

was unable to change her residency status in this country. She was unable to gain 

employment or obtain a driver’s license in the United States. 

In February 2018, Mother filed a petition seeking approval by the Juvenile Court to 

move with the Child to Canada and to modify the parties’ current permanent parenting 

plan. The petition states, inter alia, that (1) the parents had been awarded equal parenting 

time with the child by previous court order, (2) Mother provided Father with notice of her 

intent to relocate to Mississauga, Ontario via certified mail and hand delivery in May 2017, 

and (3) Father had failed to file a petition opposing the move. Mother therefore requested 

that she be permitted to relocate with the child to Canada, as well as modification of the 

parties’ permanent parenting plan. Mother’s letter expressing her intent to relocate with 

the child stated that the “purpose of the move is to pursue employment” because Mother 

was unable to obtain legal employment in the United States after the expiration of her visa. 

Father subsequently filed an answer to Mother’s petition, in which he denied 

receiving notice via certified mail but stated that Mother had showed him the notice while 

they were considering reconciliation and that they were subsequently engaged to be 

married. Father also filed a petition in opposition to Mother’s notice to relocate with 

similar allegations as in his answer to Mother’s petition and arguing that it was not in the 

Child’s best interest to move to Canada. Both parties filed proposed parenting plans with 

their respective pleadings.

Following a motion by Father, the Juvenile Court appointed a guardian ad litem. 

Father subsequently filed a motion to appoint an expert witness, which was granted, and 

Dr. Bradley Freeman was appointed. The parties conducted discovery and the Juvenile 

Court resolved any issues between the parties pertaining to discovery.

The parties’ petitions were heard by the Juvenile Court Magistrate, who 

subsequently entered an order permitting Mother to relocate to Canada with the Child. 

After the Magistrate’s ruling, Father filed post-trial motions requesting several avenues of 

relief, which were denied except for providing Father with additional time to request a 
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rehearing. Following the Magistrate’s ruling, Mother and the Child moved to Canada in 

June 2020 after the new permanent parenting plan went into effect. Father filed a request 

for a hearing before the Juvenile Court Judge, which was granted and a trial date scheduled. 

The Juvenile Court Judge conducted a de novo trial over three days in August 2020, 

wherein the following witnesses testified: (1) Mother; (2) Joanne H., paternal grandmother

(“Paternal Grandmother”); (3) Father; (4) Bradley Freeman, M.D., a forensic psychiatrist 

appointed by the court as an expert; and (5) Gail M., Mother’s former mother-in-law from 

a previous marriage and the paternal grandmother to Mother’s older daughter. Mother was 

pro se during trial and participated remotely from Canada. Because of the Covid-19 

pandemic, the trial was conducted via video-conferencing software. Autumn was six years 

old at the time of trial. 

The Trial Court considered evidence presented by Dr. Bradley Freeman, Associate 

Professor of Clinical Psychiatry at Vanderbilt University School of Medicine. Dr. Freeman 

testified during trial as an expert witness in forensic psychiatry and comprehensive fitness 

for parenting. Dr. Freeman had conducted a comprehensive evaluation on both parents in 

February 2019. In his report, Dr. Freeman opined that it would be in the Child’s best 

interest to remain in Tennessee with Father. Sometime after preparation of his report, Dr. 

Freeman spoke again with the parties and the Child prior to trial. Dr. Freeman testified 

that his recommendations and opinions had not changed since his original report and that 

he believed Tennessee to be the more stable option for the Child. The Trial Court found 

that Dr. Freeman was a credible expert witness but determined that much of the information 

contained in Dr. Freeman’s report was outdated by the time of trial because Mother had 

moved to Canada with the Child and had been residing there for approximately two months. 

Neither parent was employed at the time of trial. During trial, Dr. Freeman opined 

that neither parent “had a super financial situation,” but the Juvenile Court found that this 

had changed for Mother after her relocation to Canada. Mother testified that she received 

approximately $2,100 per month in income. According to Mother, she received a nominal 

amount of music royalties every quarter of approximately $50. Mother testified that she

received child support for both of her children, totaling $1,100 per month, and Ontario 

work benefits of approximately $1,050 per month since her relocation to Canada. She also 

had applied for child benefits in Ontario that would be an additional $800 per month once 

approved. Mother also testified that she had $200 in her savings account and had been able 

to save an additional few thousand dollars.

Mother has custody of a nine year old half-sibling of the Child. Mother described 

the two children as best friends and having a lifelong and loving bond. According to 

Mother, she could not imagine separating the two siblings. Dr. Freeman testified that the 

Child had made a comment concerning fighting with her maternal half-sibling and 

sometimes feeling unsafe with her sister, but Dr. Freeman stated that he did not have “any 

strong information” that the sister had been aggressive toward the Child. 
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Mother has other family members in Canada. One of Mother’s sisters lives 

approximately an hour away from Mother, and the other sister is approximately three hours 

away. Mother is also close with her former in-laws and the paternal grandparents of her 

older child, who live an hour and a half away from them and visit each weekend. Mother 

testified that she had been the primary caregiver for the Child during her whole life and 

that she “always picked up the slack.” Mother testified that she encouraged the Child’s 

relationship with Father and the Child’s half-siblings in Tennessee and had included Father 

in the Child’s activities. 

Mother testified that she currently lived at Wasaga Beach, Ontario in a townhome 

owned by her former mother-in-law. When Mother and the Child returned to Canada, they 

were required to quarantine for fourteen days away from any other person. The home is 

currently listed for sale. When moving to Canada, Mother’s living and employment plans 

changed due to the Covid-19 pandemic. She had been paying rent in the amount of $1,300 

per month, which included utilities. Mother testified that she had applied for a custodial

or cafeteria job at the Child’s school making $23-25 an hour and that her previous 

employment plans of working with her brother-in-law in Toronto were changed due to the 

pandemic.

Father testified during trial he had not been able to work due to his back injury and 

was on TennCare. Father had been in a car accident with two of his children in March 

2016 and injured his back. Father had back surgery in 2017. Father continued to work and 

was on pain medication through the end of 2017. According to Father, he could not 

“continue doing the lifestyle [he was] doing so [he] went and got off of the pain 

medication.” Mother testified that Father attended an in-patient rehab for an opioid 

addiction during the month of December 2017. According to Mother, she cared for the 

Child during that whole month. Father testified that he had not been able to return to work 

but had been working with his doctors to control the pain. According to Father, his 

depression and pain is being managed by new medication. 

Father’s license to practice law in Tennessee had been suspended due to his failure 

to pay the required fees and to complete the necessary continuing legal education classes. 

By the time of trial, Father had completed the continuing legal education requirement and 

paid all his fees. He testified that he planned to seek reinstatement. He also is licensed to 

practice law in Florida. According to Father, he is ready to go back to work and should be 

able to obtain employment within a month. Father testified that he planned to adjust his 

work schedule to be home when the Child gets home from school. However, the Juvenile 

Court found that when asked, Father had no concrete plan regarding who would watch the 

Child if he had full-time custody of her. 

Father testified that he lives in Franklin, Tennessee in a nearly 6,000 square foot

house worth over a million dollars with seven bedrooms and has about $400,000-500,000 
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of equity in his home. According to Father, the Child has a suite in his home that she will 

be sharing with her sister. Father’s mortgage balance is $600,000 and his payments are 

around $3,300 per month. At the time of trial, Father testified that his mortgage payments

had been deferred due to the Covid-19 pandemic and his unemployment. Father testified 

that he has $20,000 remaining in a savings account but acknowledged that he had a federal 

tax lien, a lien due to home improvement, and a lot of debt. He had listed his home for sale 

several times and had received an offer of one million a couple years prior. 

Father testified he had shared equal parenting responsibilities for the Child with 

Mother prior to the Child’s moving to Canada. Father further testified that despite his back 

injury, he is physically capable of caring for the Child. According to Father, he is very 

involved with the Child’s schooling and extracurricular activities. 

Father has family in Tennessee and in North Carolina. Father now has a younger 

baby with another woman and is engaged to the mother of his young baby. He also has 

three older children that go back and forth between his house and their mother’s home. 

The Child has a close relationship with her half-siblings residing in Tennessee. Paternal 

Grandmother testified that she had moved into Father’s home in June 2015, while Mother 

and the Child were residing there, but stated that she had moved out in June 2020. Paternal 

Grandmother has a close relationship with the Child. While living with Father, Paternal 

Grandmother denied that she performed most of the parenting responsibility and stated that 

Father was the “number one parent.” According to Paternal Grandmother, she did the 

things Father asked her to do. She further testified that she helped with the cooking and

cleaning. At the time of trial, Paternal Grandmother was living only a mile away from 

Father.

Father had his first visit with the Child under the new permanency plan prior to trial. 

Father drove to Canada to pick the Child up from Mother’s home. The home where Mother 

was residing at the time of trial was listed for sale, and she admittedly removed the “for 

sale” sign from the yard before Father arrived for the visit. According to Mother, the listing 

will expire soon and her former mother-in-law was not planning to renew the listing. 

Mother’s former mother-in-law testified that she had entered into a rental agreement with 

Mother and confirmed that if the property did not sell by the time the listing expired, she 

was going to take the listing down. The Child was with Father on her birthday, and Father 

did not allow Mother’s family to speak to the Child on her birthday. He stated that Mother 

talked to the Child that morning and that he let Mother’s family speak via Facetime with 

the Child the following day. When the Child returned from her visit with Father, Mother 

had to pick the Child up because Father would not bring the Child to the airport to meet 

Mother. 

The Juvenile Court entered its judgment in August 2020, permitting Mother to move 

to Canada with the Child. The Trial Court found that Father was not a credible witness 

during trial, that he had difficulty answering questions directly, and that his responses in 
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court “were more ‘politically correct’ in anticipating what the Court wants to hear.” 

However, the Juvenile Court found that Mother’s credibility was “more solid” and that she 

was direct and candid with the court. The Juvenile Court found that when the parties’ 

anticipated marriage did not occur, Mother “had no choice” but to relocate to Canada 

because she was unable to renew her visa, change her residency status, or obtain a driver’s 

license in the United States. 

The Juvenile Court determined that the parents were spending substantially equal 

time with the Child prior to the Covid-19 pandemic and, therefore, found there was no 

presumption in favor of or against Mother’s petition to relocate. See Tenn. Code Ann. § 

36-6-108(c) (2017). The Juvenile Court further considered the best interest factors in 

Tennessee Code Annotated § 36-6-106(a)(1)-(15) and made the following findings of fact:

(1) The strength, nature, and stability of the child’s relationship with 

each parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child. Both 

parents have a very strong bond with the child. Both have been extremely 

active in the care and nurturing of the child. Mother has been a stay-at-home 

mom actively involved in the child’s schooling and activities such as story 

time at the library. Father has also been present to engage in activities with 

the child such as cheerleading and swimming.

Mother has, however, been the parent who has mostly performed the 

majority of daily responsibilities for the child such as doctors, dentist, 

schooling and stable routine. Father has struggled with addiction, loss of 

employment and does not exhibit the emotional stability Mother has been 

able to maintain despite the stress of her residency status and this miserable, 

prolonged litigation. This factor weighs in Mother’s favor.

(2) Each parent’s past and potential for future performance of 

parenting responsibilities, including the willingness and ability of each of the 

parents and caregivers to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

consistent with the best interest of the child. In determining the willingness 

of each of the parents to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

the court shall consider the likelihood of each parent to honor and facilitate 

court ordered parenting arrangements and rights, and the court shall further 

consider any history of either parent or any caregiver denying parenting time 

to either parent in violation of a court order. The Court first notes that Dr. 

Freeman testified he did not find parental alienation an issue in this case. 

Both parents testified they would encourage a close and continuing parentchild relationship between the child and the other parent, but really only as 
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long as they were the primary residential parent and had the child the 

majority of the time. Their relationship has been contentious and adversarial 

largely because this case has been going on so long.

Father, and his relatives, expressed their concern to Dr. Freeman that 

his relationship with the child would suffer due to Mother. “[Father] stated 

he has good reason to believe that his relationship with Autumn will suffer if 

his daughter is allowed to relocate with [Mother]. [Father] has reported 

Autumn has told him that [Mother] does not like him, his father or his 

brother. He also reported receiving emails from [Mother’s] mother 

describing her strong dislike for him.” [Paternal Grandmother] told Dr.

Freeman “she is concerned about how [Mother] will behave and parent once 

out of the scrutiny of the court.” But in fact, Mother has done very well 

getting settled since relocating and the parties were able to manage the first 

visitation without major issues.

Mother reported to Dr. Freeman “she would love to have a healthy 

relationship with [Father] in which they can co-parent Autumn together. She 

stated ‘I don’t think that will happen as long as we are in court.’ She stated 

keeping the relationship civil between them is the best she can currently hope 

for and do.” Mother said “I have found co-parenting with John rather 

manipulative and tricky. I am hoping that improves after the case is 

finalized.” 

Both parents have exhibited the ability to co-parent well with their 

former ex-spouses so the Court is encouraged that they could potentially 

manage this in the future. The biggest barrier in this case has been the 

constant litigation and the inability to get past the hurt and anger.

The Court is concerned with the recent minor problems with 

visitation: Father not bringing the child to the airport for Mother; not assuring 

Mother is able to talk with the child on her birthday; Mother pulling up the 

For Sale sign in her yard before Father’s visit. 

The Court finds Mother has a slight advantage with this factor as her 

credibility is more solid and her comments to Dr. Freeman about wanting to 

co-parent are consistent with her testimony at trial. Mother seems to be 

sincere where Father[’s] comments were more “politically correct” in 

anticipating what the Court wants to hear.

(3) Refusal to attend a court ordered parent education seminar may 

be considered by the court as a lack of good faith effort in these proceedings.
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This factor is not applicable in this case. However, Mother did, on her own, 

attend a co-parenting class.

(4) The disposition of each parent to provide the child with food, 

clothing, medical care, education and other necessary care. The parties are 

equally situated with this factor. While Father may have more financial 

resources than Mother to provide certain “extras”, each parent is perfectly 

capable of providing these basic needs for the child.

(5) The degree to which a parent has been the primary caregiver, 

defined as the parent who has taken the greater responsibility for performing 

parental responsibilities. The Court finds this factor favors Mother in being 

the primary and consistent caregiver for the child. While Father is to be 

commended on his mostly equal participation in parenting the child, and 

doing it very well, he had the benefit of paternal grandmother to assist him 

daily for almost the entirety of his parenting time for the last five years. The 

Court finds paternal grandmother was a very stable and substantial caregiver 

for the child based on grandmother’s testimony and the testimony of other 

witnesses.

(6) The love, affection, and emotional ties existing between each 

parent and the child. Both parents have an enormous amount of healthy love, 

affection, and emotional ties with this child. This child is greatly loved by 

many. Parents equally share the weight of this factor.

(7) The emotional needs and developmental level of the child. Both 

parents demonstrated an equally capable ability to care for the emotional 

needs and developmental level of the child. Each is proactive in assuring the 

best education and extracurricular activities, Mother in her active 

involvement with school and other activities and Father desiring the best 

possible education and assuring outside activities as well. They equally share 

the weight of this factor.

(8) The moral, physical, mental and emotional fitness of each parent 

as it relates to their ability to parent the child. The Court finds this factor 

favors Mother. Father has struggled with addiction that has caused major 

life-changing events: substance abuse treatment, depression, physical 

limitations, loss of employment and financial hardship. It remains uncertain 

whether Father has weathered this storm as he is still unemployed and still 

being treated for depression.

At the time of the trial, Father still did not have a job after letting his 

law license suspend for failure to comply with continuing education. It is 
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very concerning to the Court that Father was able to participate freely in all 

his children’s extracurricular activities, including some with physical 

activity, but yet not able to keep up with his annual hours of legal education 

while he was managing his back pain. Father has relied heavily on monetary 

gifts from his family that just seem to keep coming. His motivation for stable 

employment is low. He is still being treated for depression, is encumbered 

with the responsibility of yet another child with a new partner and has no 

concrete plans for the future.

Mother, on the other hand, has greatly improved her circumstances. 

While she does not live the life of luxury that Father does, she has been able 

to secure safe and appropriate housing, total medical and dental care for the 

child and herself (thanks to the Canadian system), financial benefits and a 

plan for employment she would have never had in this country. Her stress 

level appears to have substantially decreased with her new life. She is in 

good health. She is emotionally much more stable than Father. The Court 

places the most weight in this factor for Mother.

(9) The child’s interaction and interrelationships with siblings, other 

relatives and step-relatives, and mentors, as well as the child’s involvement 

with the child’s physical surroundings, school, or other significant activities.

There are a lot of relatives! This factor equally benefits both parents. There 

are siblings, half-siblings, step-siblings, ex-step-grandparents... this is a 

lucky child. She has an abundance of love on both sides of these families 

and both parents are doing an excellent job of incorporating these relatives 

into the child’s life in a positive manner.

(10) The importance of continuity in the child’s life and the length of 

time the child has lived in a stable, satisfactory environment. Of course this 

factor favors Father. The child has always lived in Tennessee until just a few 

months ago. 

Just as Dr. Freeman said, we always want to see children in a stable 

environment and it is detrimental to remove a child from a dependent family 

support system. What Dr. Freeman did not know and could not have known 

at the time of his report, was whether Mother would be able to replicate this 

same dependent family support system in Canada. The good news is she has. 

While this factor does favor Father, Mother has shown both parents are able 

to provide this stable, satisfactory environment.

(11) Evidence of physical or emotional abuse to the child, to the other 

parent or to any other person. While there is some evidence in Dr. 

Freeman’s report as to past emotional/physical abuse by Father to Mother, 
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the Court does not consider this factor to weigh in favor of either parent and 

does not find it to be [a] factor the Court considered.

(12) The character and behavior of any other person who resides in 

or frequents the home of a parent and such person’s interactions with the 

child. The Court does not find any person in either parent’s home that is not 

totally appropriate and does not find this to be a factor to be considered.

(13) The reasonable preference of the child if twelve (12) years of age 

or older. The Court finds this factor is not applicable in this case.

(14) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules. Since neither parent is 

actively employed at the time of this hearing, it is difficult to make a 

determination as to this factor.

The Court remains concerned with Father’s lack of employment and 

unrealistic anticipation of working a limited schedule to accommodate the 

child. Dr. Freeman’s report indicated Father was previously employed as a 

senior trial counsel, working ten hours a day. The Court finds it rather 

incredulous that Father could find employment that would basically allow 

him to work part-time to be home with the child and be able to continue the 

lifestyle he now maintains. Certainly, Father will always be in a position to 

be a higher wage-earner than Mother in the future.

Mother has focused her attention on employment that would allow her 

to mirror her children’s schedule (school job or veterinary job). The Court 

does not place a great deal of weight on this factor because of the 

employment uncertainty of both parents.

Both of these parents are equally devoted to this child and are good 

parents. Ultimately, the Court finds Mother to be more emotionally stable 

and solid to be the primary residential parent under these new changed 

circumstances. Mother appeared to the Court to be the more credible 

witness. Representing herself, she was direct and candid. It was clear she 

did not have the financial resources available to Father but she did an 

excellent job of prioritizing the needs of her children and herself at trial. 

Father, on the other hand, found it very difficult to directly answer any 

question, especially from the Court. His answers seemed too rehearsed. The 

Court has grave concerns about Father’s credibility when he goes three years 

without working but is able to access T[enn]Care for himself while 

swimming in his pool with his children. 
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Mother is like the steadfast rock that cements the child’s feet to the 

ground. Father is like the attractive, shiny, sleek yacht that sits in the harbor, 

mostly anchored, but sometimes cruising out at sea. A nice place to vacation,

but not necessarily the best place to remain permanently.

(Internal citations omitted.) Upon consideration of the evidence before the court and the 

best interest of the child, the Juvenile Court granted Mother’s petition seeking relocation 

to Canada and adopted an updated parenting plan that allowed Father parenting time with 

the child for six weeks in the summer, for the Child’s spring break from school, and during 

the Child’s winter break from school, as well as parenting time in Canada at any time with 

seven days’ notice to Mother. 

Father filed a motion to alter or amend the Juvenile Court’s judgment, which was 

denied. The Juvenile Court found that the motion should be denied because Father’s 

motion did “nothing more than disagree with the Court’s findings.” According to the 

Juvenile Court’s order on the motion to alter or amend, there was no clerical mistake, 

changed circumstances, or newly discovered evidence that would support Father’s request 

to alter or amend the judgment. Father timely appeals to this Court. 

Discussion

Although not stated exactly as such, Father raises the following issues for our review 

on appeal: (1) whether the Juvenile Court erred by determining that it was in the Child’s 

best interest to relocate to Canada with Mother; and (2) whether the videoconferencing 

software inhibited the Juvenile Court’s ability to understand and apply the evidence 

presented at trial.1

Our review is de novo upon the record, accompanied by a presumption of 

correctness of the findings of fact of the trial court, unless the preponderance of the 

evidence is otherwise. Tenn. R. App. P. 13(d); Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 

2014). A trial court’s conclusions of law are subject to a de novo review with no 

presumption of correctness. Kelly, 445 S.W.3d at 692.

When Mother filed her petition, the statute in effect governing parental relocation, 

Tennessee Code Annotated § 36-6-108(c) (2017), read as follows:

If the parents are actually spending substantially equal intervals of time with the 

child and the relocating parent seeks to move with the child, the other parent may, 

 

1

In her brief, Mother included a motion requesting that this Court strike portions of Father’s brief that 

include alleged facts that do not appear in the record. Mother is correct that this Court considers, with a 

very few exceptions not applicable here, only facts that are included in the record on appeal. Because we 

have not considered any facts not contained in the record before us, we deny Mother’s motion as moot.
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within thirty (30) days of receipt of notice, file a petition in opposition to removal 

of the child. No presumption in favor of or against the request to relocate with the 

child shall arise. The court shall determine whether or not to permit relocation of 

the child based upon the best interests of the child. The court shall consider all 

relevant factors including those factors found in § 36-6-106(a)(1)-(15).

Tennessee Code Annotated § 36-6-106(a) provides the following best interest factors to be 

considered by the court: 

(1) The strength, nature, and stability of the child’s relationship with each 

parent, including whether one (1) parent has performed the majority of 

parenting responsibilities relating to the daily needs of the child;

(2) Each parent’s or caregiver’s past and potential for future performance of 

parenting responsibilities, including the willingness and ability of each of the 

parents and caregivers to facilitate and encourage a close and continuing 

parent-child relationship between the child and both of the child’s parents, 

consistent with the best interest of the child. In determining the willingness 

of each of the parents and caregivers to facilitate and encourage a close and 

continuing parent-child relationship between the child and both of the child’s 

parents, the court shall consider the likelihood of each parent and caregiver 

to honor and facilitate court ordered parenting arrangements and rights, and 

the court shall further consider any history of either parent or any caregiver 

denying parenting time to either parent in violation of a court order;

(3) Refusal to attend a court ordered parent education seminar may be 

considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, 

medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as 

the parent who has taken the greater responsibility for performing parental 

responsibilities;

(6) The love, affection, and emotional ties existing between each parent and 

the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it 

relates to their ability to parent the child. The court may order an 

examination of a party under Rule 35 of the Tennessee Rules of Civil 
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Procedure and, if necessary for the conduct of the proceedings, order the 

disclosure of confidential mental health information of a party under § 33-3-

105(3). The court order required by § 33-3-105(3) must contain a qualified 

protective order that limits the dissemination of confidential protected mental 

health information to the purpose of the litigation pending before the court 

and provides for the return or destruction of the confidential protected mental 

health information at the conclusion of the proceedings;

(9) The child’s interaction and interrelationships with siblings, other relatives 

and step-relatives, and mentors, as well as the child’s involvement with the 

child’s physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child’s life and the length of time 

the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent 

or to any other person. The court shall, where appropriate, refer any issues 

of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or 

frequents the home of a parent and such person’s interactions with the child;

(13) The reasonable preference of the child if twelve (12) years of age or 

older. The court may hear the preference of a younger child upon request. 

The preference of older children should normally be given greater weight 

than those of younger children;

(14) Each parent’s employment schedule, and the court may make 

accommodations consistent with those schedules; and

(15) Any other factors deemed relevant by the court.

Tenn. Code Ann. § 36-1-106(a) (2021). “While the trial court is directed to consider the 

appropriate factors in reaching its decision, it is not required to list each factor with the 

court’s conclusion about how that factor impacted the custody decision.” Port v. Hatton, 

No. M2011-01580-COA-R3-CV, 2013 WL 865549, at *6 (Tenn. Ct. App. March 6, 

2013), no perm. app. filed (Tenn.).

Father argues that the Juvenile Court made “numerous erroneous assumptions” 

concerning Father’s and Dr. Bradley Freeman’s testimony. As to Father’s testimony, the 

Juvenile Court found that Father’s testimony was not credible. Concerning the credibility 

of witnesses, our Supreme Court has instructed:
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When credibility and weight to be given testimony are involved, considerable 

deference must be afforded to the trial court when the trial judge had the 

opportunity to observe the witnesses’ demeanor and to hear in-court 

testimony. Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) 

(quoting Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). 

Because trial courts are able to observe the witnesses, assess their demeanor, 

and evaluate other indicators of credibility, an assessment of credibility will 

not be overturned on appeal absent clear and convincing evidence to the 

contrary. Wells v. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). 

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn. 

2011). 

In making its decision that Father was not a credible witness, the Juvenile Court 

found that Father’s comments during trial “were more ‘politically correct’ in anticipating 

what the Court wants to hear.” According to the Juvenile Court, Father had difficulty 

directly answering the questions that he was asked, especially questions asked by the court, 

and his answers appeared “too rehearsed.” The Juvenile Court also expressed concern with 

Father’s credibility when he had been unemployed for three years and was on TennCare 

“while swimming in his pool with his children.” As instructed in Hughes, we provide great 

deference to the Trial Court’s credibility determinations, which will not be overturned on 

appeal unless clear and convincing evidence proves otherwise.2 In this case, we find that 

no clear and convincing evidence exists to rebut the Juvenile Court’s finding that Father 

was not a credible witness. 

Father takes issue with much of the Juvenile Court’s interpretation of the evidence. 

According to Father, the evidence presented during trial preponderates against the Juvenile 

Court’s findings of fact. Taking into account the Juvenile Court’s credibility 

determinations and all the evidence presented, we disagree.

The Juvenile Court considered each of the best interest factors in making its decision 

regarding whether to approve Mother’s relocation to Canada. In its judgment, the Juvenile 

Court recognized that both parents had a strong bond with the Child and had been actively 

engaged in the care and nurturing of the Child. Father takes issue with the Juvenile Court 

contributing his parental responsibilities to Paternal Grandmother, while discounting 

Paternal Grandmother’s testimony that Mother did little to care for the Child while living 

with Father. The Juvenile Court found that Mother had been the parent present for the 

 

2 That the trial was conducted by video conferencing due to the Covid-19 pandemic is not a valid reason 

for us to depart from the Tennessee Supreme Court’s instructions in Hughes. Our Supreme Court has 

previously held that this Court must use the same deferential standard regarding credibility determinations 

as applied to live in-person testimony even when a witness testifies via telephone. See Kelly v. Kelly, 445 

S.W.3d 685, 695 (Tenn. 2014) (holding that “a trial court is better-situated to gauge the credibility of a 

telephonic witness than an appellate court”).
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majority of the day-to-day responsibilities for the Child, which included doctor’s 

appointments, dentist appointments, schooling, and providing a stable routine for the Child. 

The Juvenile Court clearly did not find credible the allegations by Paternal Grandmother 

that Mother did little to care for the Child. The Juvenile Court found that Mother had been 

the primary and consistent caregiver for the Child. The Juvenile Court commended Father 

on his effective and “mostly equal participation” of parenting the Child in recent years but 

acknowledged that Paternal Grandmother had been present in his home to assist him daily 

for almost the entirety of his parenting time. The Juvenile Court found that she had been 

a “very stable and substantial caregiver” for the Child. The evidence presented does not 

preponderate against the Juvenile Court’s findings regarding this factor. 

Regarding the moral, physical, mental, and emotional fitness of the parents, the 

Juvenile Court found that this factor weighed in favor of Mother. Although Father argues 

that the Juvenile Court essentially disregarded Mother’s immigration issues, it is clear from 

the Juvenile Court’s judgment that it had indeed considered this fact and found that Mother 

had no choice but to seek relocation to Canada after the expiration of her visa and the 

change in her residency status. The Juvenile Court found that Mother had greatly improved 

her circumstances since relocating to Canada, that her stress level had decreased, and that 

she is in good health. The Juvenile Court also considered Father’s struggle with addiction 

and his loss of employment and found that Mother had more emotional stability. 

According to the Juvenile Court’s findings, Father continues to be treated for depression, 

is now responsible for the care of a new child, and has no concrete plans for the future. 

Concerning continuity, the Juvenile Court acknowledged that the Child has always 

lived in Tennessee until recently, which favored Father. In his brief, Father argues that the 

Juvenile Court “seemed to diminish the importance” of this factor and stated that Dr. 

Freeman had recent conversations with Mother and the Child and had indicated to the court 

that his recommendation in the report had not changed. Dr. Freeman testified as an expert 

witness in forensic psychiatry and comprehensive fitness for parenting. “[D]eterminations 

concerning the admissibility, qualifications, relevance, and competency of expert

testimony is left to the sound discretion of the trial court.” Singh v. Larry Fowler Trucking,

Inc., 390 S.W.3d 280, 287 (Tenn. Ct. App. 2012). The Juvenile Court found that Dr. 

Freeman was a credible expert witness but opined that much of his information was 

outdated due to the change in the parties’ living situation since his evaluation. The Juvenile 

Court found that Dr. Freeman completed his evaluation of the parents in February 2019. 

However, in June 2020, Mother moved with the Child to Canada with the permission of 

the court. Although the Juvenile Court considered Dr. Freeman’s report and relied on 

portions of it, it found that much of it was outdated. The Juvenile Court clearly disagreed 

with Dr. Freeman’s opinion that it would be in the Child’s best interest to live in Tennessee 

with Father based on the parents’ circumstances at the time of trial. The Juvenile Court 

was not required to adopt and agree with Dr. Freeman’s opinion but instead was free to 

base its decision on the entirety of the evidence presented to it.
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The Juvenile Court found that both parents would be able to provide a stable, 

satisfactory environment for the Child. According to the Juvenile Court, Mother had done 

well since her relocation with the Child to Canada and was in a better financial situation 

than she had been in while in the United States. Additionally, the Juvenile Court 

considered the parents’ respective support systems and found that the Child was lucky with 

several relatives on both sides of the family, with both parents successfully incorporating 

those family members into the Child’s life in a positive manner. 

At the time of trial, neither parent was employed. Father argues that the Juvenile 

Court did “not indicate its findings” regarding the employment related factor. Our review 

of the Juvenile Court’s judgment does not support this contention by Father. The Juvenile 

Court did not place much weight with this factor due to the uncertainty of the parents’ 

employment. However, it considered that Father likely would not be able to find part-time 

employment that would allow him to be home with the Child and yet also allow him to 

maintain his current lifestyle. The Juvenile Court considered this statement to the contrary 

by Father to be unrealistic. Additionally, the Juvenile Court found that Mother was 

focusing her attention on employment that would allow her to mirror the Child’s schedule 

and noted that Mother was attempting to obtain employment in the Child’s school or at a 

veterinary office. As noted, while the Juvenile Court did not place much weight on this 

factor due to the uncertainty of the parents’ future employment, it did consider the facts 

relevant to this factor.

According to Father, the Juvenile Court “ignored the testimony of the Mother in 

reference to her resources and abilities.” However, the Juvenile Court considered Mother’s 

current situation in Canada in making its decision. Despite the fact that Father may be able 

to provide more luxuries for the Child, the Juvenile Court found that both parents were 

capable of providing for the emotional needs and basic necessities of the Child. The 

evidence presented does not preponderate against this finding by the Juvenile Court. 

The Juvenile Court considered each parents’ willingness to encourage a relationship 

with the other parent. According to Father, the Juvenile Court ignored Dr. Freeman’s 

testimony concerning negative statements Mother made about Father. However, the 

Juvenile Court had considered this issue and emphasized that Dr. Freeman clarified in his 

testimony that he had not found parental alienation to be an issue in this case. Mother 

testified at trial that if she had custody of the Child, she would encourage a relationship 

between Father and the Child. The Juvenile Court recognized the parents’ contentious 

relationship and found that Mother appeared to be more sincere in her desire to co-parent 

with Father, whereas Father’s comments were more “politically correct.” 

The Juvenile Court found that Mother had managed to do “very well getting settled” 

in Canada since relocating and that the Child’s first visit with Father had occurred without 

any major issues. However, the Court did express concern regarding “minor issues” that 

occurred, including “Father not bringing the child to the airport for Mother; not assuring 
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Mother is able to talk with the child on her birthday; Mother pulling up the For Sale sign 

in her yard before Father’s visit.” We agree with Father that he had testified during trial 

that it was Mother’s family, not Mother, who were unable to speak to the Child on her 

birthday. Mother acknowledged that Father called her briefly on the morning of the Child’s 

birthday but stated that when she called back that afternoon, she could not get through. 

Even if the statement by the Juvenile Court about Father “not assuring Mother is able to 

talk with the child on her birthday” is contradicted by the testimony at trial, the evidence 

presented at trial does not preponderate against the remaining findings by the Juvenile 

Court concerning best interest. 

As previously stated, we must give great deference to the Juvenile Court’s findings 

regarding witness credibility. The evidence in the record on appeal does not preponderate 

against the majority of the Trial Court’s findings with regard to custody and those findings 

support the Juvenile Court’s determination that it is in the Child’s best interest to relocate 

to Canada with Mother. We find and hold, as did the Juvenile Court, that allowing Mother 

to relocate with the Child to Canada is in the Child’s best interest. 

Father also raised an issue concerning whether the court’s utilization of videoconferencing software had inhibited the Juvenile Court’s ability to understand and apply 

the evidence presented by the parties during trial. On appeal, Father requests that this Court 

remand to the Juvenile Court “preferably for in-person proceedings to insure that the trial 

court is able to reliably hear and understand the evidence and arguments being made and 

is able to avoid the issues created by the use of videoconferencing software.” Mother, 

however, averred that there were no major audio issues causing confusion with the 

proceedings. We agree with Mother. Since early in the Covid-19 pandemic, our Supreme 

Court has encouraged the use of video-conferencing software in conducting court 

proceedings. In re COVID-19 Pandemic, No. ADM2020-00428 (Tenn. April 24, 2020).

Upon our review of the transcripts, we find no evidence to suggest the Juvenile 

Court misunderstood or misapplied the evidence before the court. In his brief, Father 

points to statements by the Juvenile Court finding that Mother was comparable to a 

“steadfast rock that cements the child’s feet to the ground” while describing Father as the 

“attractive, shiny, sleek yacht that sits in the harbor, mostly anchored, but sometimes 

cruising out at sea. A nice place to vacation, but not necessarily the best place to remain 

permanently.” According to Father, technology issues “undoubtedly must have led” to the 

Juvenile Court’s mischaracterization of the parties. 

We acknowledge that technology issues arise, as they did in this case. However, 

the Juvenile Court ensured that the issues were remedied each time. We disagree with 

Father’s argument and find no indication that the Juvenile Court misunderstood or 

misapplied the evidence in this case. Father’s disagreements with the Juvenile Court’s 

findings of fact provide no support for Father’s conclusion that the Juvenile Court

misunderstood or misapplied the evidence. The evidence presented to the Juvenile Court 
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does not preponderate against the extensive findings of fact made by the Juvenile Court. 

We find Father’s argument in this regard to be unavailing. 

Conclusion

The judgment of the Juvenile Court allowing Mother to relocate with the Child to 

Canada is affirmed, and this cause is remanded to the Juvenile Court for collection of the 

costs below. The costs on appeal are assessed against the appellant, John G., and his surety, 

if any.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE