F IL ED

N ovem ber 24,

1998

Ceci l Crow son,

J r .

Appel l a t e Court

C l e r k

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ASHLEY CHRISTINE OLEN and ) C/A NO. 03A01-9805-

CV-00166

STEVEN MICHAEL OLEN, )

BY: THERESA E. OLEN, ) JOHNSON CIRCUIT

)

Appellant, ) HON. G. RICHARD JOHNSON, 

) JUDGE

v. )

)

ANGELA ARLENE OLEN ALTHERR, ) AFFIRMED

) AND

Appellee. ) REMANDED

H. RANDOLPH FALLIN, Mountain City, for Appellant.

WILLIAM J. COCKETT, SMITH & COCKETT, Mountain City, for Appellee.

O P I N I O N

Franks, J.

In this child custody action, the minor children’s stepmother sought

custody after the death of her husband, who had been the custodial parent. The

natural mother counter-claimed for custody, and the Trial Judge awarded custody to

the natural mother. The stepmother has appealed.

At the time the father and mother divorced, there was an award of joint

custody of the children, with primary residential custody in the mother. Subsequently,

the Kansas Social Service System took custody of the children, and in a subsequent
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court hearing in Kansas, the Court determined that the mother had fa iled to prope rly

care for the children and was “not economically or emotionally stable enough at the

present time to properly care for the children”, and changed the custody to the father

and ordered the mother to pay $261.00 per month as child support.

On November 24, 1995, the father married Theresa E. Olen

(stepmother). Following an evidentiary hearing, the Trial Court was highly

complimentary of the stepmother in her love and care of the children. He also found

that the natural mother kept in contact and maintained a relationship with the children. 

The Court also observed:

Ms. Altherr (natural mother) doesn’t have the education of the

children’s stepmother, but in spite of not having the education of the

children’s stepmothe r, and in spite of a real struggle in trying to keep in

contact with the children and find out where the children were, there is

no doubt in this Court’s mind that she loves them just as much as Mrs.

Olen.

The Court concluded that the issue was not the traditional best interest

of the children test, but whether a child would suffer “ substantial ha rm” if custody is

awarded or retained in the natural parent vis a vis a non-parent.

The standard of review in child custody cases is de novo upon the record

of the Trial Court with a presumption of the correctness of the Trial Court’s findings,

unless evidenc e preponderate s otherwise. Hass v. Knighton, 676 S.W.2d 544, 555

(Tenn. 1984). 

We affirm the judgment of the Trial Court in awarding custody of the

two minor children to the natural mother. The evidence does not preponderate against

the Trial Court’s conclusion that the children are not in dange r of substantial harm in

their mother’s custody. The Tennessee Supreme Court has held “in a contest between

a parent and a non-parent, a parent cannot be deprived of the custody of a child unless

there has been a finding, after notice required by due process, of substial harm to the

child”. In re Adoption of Female Child, (Bond v. McKenzie), 896 S.W.2d 546-548
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(Tenn. 1995). Also see Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). Only after a

court finds “substantial harm to a child” may it “engage in a general ‘best interest of

the child’ evaluta tion in making a determination of custody”. Id. 

The stepmother did not meet the burden of proof on the issue of

substantial harm. The stepmother asserts that the children are in danger due to the

lack of the mother’s parenting skills, wilfull failure to pay support and failure to visit

the children regularly, as well as being emotionally unstable.

The mother admits that her children were removed from her custody, but

disputes that she does not possess parenting skills. She explained that the children

were removed from her upon allegations of sexual abuse. The allegations came the

day after she informed the father that she planned to move with the children, and the

accused was acquitted of any wrongdoing. After the children were removed from her

custody, the father continued to le ave them alone in her c are while he was at work. 

There was other evidence that her parenting skills were satisfactory, and the children

interacted well with her. Her physicians were of the opinion that she did not have any

psychological problems that would interfere with her care of the children.

The mother admits that she did not pay child support for several years,

and claims that she could not afford to pay child support and visit her childrens, so she

chose visitation. After she joined the navy she voluntarily started paying child

support, and continued to pay support until she could not locate her children. At the

time of the hearing the mother was earning income from two jobs, and intended to live

with her parents for the time being, as there wa s ample room in tha t home for herself

and her children. We affirm the award of custody to the natural mother and remand

with the cost of the appeal assessed to the appe llant.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.