### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON O CT O BE R 2 2, 200 8 S es sio n

TAM MY RE NEE AD AM S v. JEFF ERY FA RR ELL A DA MS

Direc t Appeal from the Chancer y Court for Gibs on Coun ty No. 17193 George R. Ellis, Ch ancellor

No. W2008-00225-C OA-R3-C V - Filed Mar ch 17, 2009

T h i s ap p ea l i n v o l v es a f

at h er ’s p et i t i o nt o m o d i fy

a p ar en t i n g p l an d

u e t o an al l ege d

m at er i al ch an ge in circumstanc es. The trial court found that a material c hang e in circ umstances ha d occur red, a nd that it was in the children’ s best interest for the father to be named primary residential parent. The trial court a

war ded the f

ather his attorney ’s fees. M other a ppeals. We af

firm and r emand f

or fur ther pr oc e e din g s.

Te nn. R . A pp. P . 3 ; A ppe al a s o f R igh t; Judg me nt of th e Cha nc e r y C our t A ff ir me d and Rem anded

A LA N E. H I G H ERS , P.J.,W.S., delivered the opinion of the court, in which D AVI D R

. F ARMER ,J., and H OL LY M. K I RBY , J., joined.

Betty St aff

ord Scott, Jackson, TN, f

or Appe llant

Michae l A. Carter , Milan, TN, for A ppellee

OP IN ION-2- I. F A C TS & P R OC EDU R A L H I S T ORY

J eff rey Adams (“ Father” ) and Ta mmy Adams (“ Mother”) marrie d in 1990. Their daug hter Madison was born in 1996, and their son Connor was born in 2000. The parties w ere divorce d on No ve mbe r 2 2, 20 04
, and the a g re e d- up on pa re nti ng pla

n name d Mo the r pr ima

ry re sid e nti a l pa

re nt. Th e pa re nti ngpla

n p ro hib ite d b oth

pa rt ie s fr om e xpos ingthe c hil dr e n to a lc oh ol o r d ru g s, and it prohibited them from having a ny para mour spend the nig ht in the presenc e of the children.

On Aug ust 30, 2006, Fathe r filed a “Ve rified Motion for Te mporary Restraining Orde r, for Con te mpt , to Mo dif

y Pe rm ane nt Pare nti ng Plan and fo r P sy c ho log ic a l Cu sto dia l E va luatio n. ” I n h is motion, Father

alleg ed that Mother ha d eng ag ed in inappropr iate beha vior and fa iled to properly car e for the c hildren. Specific ally
, Father alleg ed that on Aug ust 19, 2006, Mother, who wa s 36 y ear s old, had a pa rty at her house while the c hildren, ag es ten a nd five, we re p re s en t . Father c laimed that

un de ra g e dr ink ing and “ dir ty da nc ing ” too k pla c e , in the pr e se nc e of the c hil dr e n, unti l t he ear ly hours of the morning. Father further a lleg ed that Mother w as romantica lly involved with a teena g er and allowinghim to st ay

at her house while the c hildren we re pr esent, a nd he cla imed that Mother had sent text messag es containing adult subject m atter to a mi nor. Father also claimed that Mother had lef t Connor alone at he r house, a nd the chi ld called 911. F ather alleg ed that Mother w as terminated f

rom her job as a school nurse on Aug ust 28, 2006, and failed to take Connor to school the next day . Father a lso claimed that Mo t h er h ad acc essed F ather ’s cr edit car d rec ords and telephone r ecor ds via the Interne t without permission. I n sum, Fathe r conte nded tha t Mother’s unusual and irr esponsible behavior constituted a mater ial chang e in circ umstances a nd t h at i t was in the children’ s best interest that he be desig nated primary residential pare nt. Fathe r noted that he ha d r e c e ntl y

re marr ie d, a

nd he c la ime d th a t he and

his new wi fe Jeni fe r ( “ Mr s. Ad a ms” ) c ou ld provide a stable environme nt for the c hildren.

The trial c ourt enter ed a te mporary restra ining order

prohibiting Mother

from re moving the children from Father’s car e. Mother was g rante d visitation with the children e very other we ekend

and on de sig nate d h oli da

y s, bu t it wa s to be s up e rv ise d b y Mo the r’ s mo the r o r a

no the r r e sp on sib le adult ag ree d upon by

Father.

Mo the r f ile d a n a ns we r a nd c ounte r- pe ti t i o n

f o r c on te mpt , in

wh ic h s he so ug ht t

he imm e diate return of the childre n. She admitted that she had a “small g ather ing or what one mig ht describe as a p ar t y ” at her house, but she denie d that alcohol wa s “openly consumed” by

people who w ere undera g e. She also denied that any sexually inappropriate conduct occur red. Mother denie d being

ro manti c a ll y in volve d w itha te e na g e r b ut a dmi tte d h a vin g nin e te e n a nd tw e nty -y e ar- old

fr ie nd s. Mother further denied that she was terminated from her job on August 28, and she cla imed that she did not take Co n n o r to s c h o o l th e n e xt d ay d u e to h is a ll e r g ie s

. Sh e a d mi tt e d le a v in g Co n n o r at ho me a lon e on on e occa sio n a nd that he c a lle d 9 11 , b ut s he c la ime d s he le ft him a lon e “ a t hi s reque st” and wa s only

g one fifte en minutes. She also admitted ac cessingFather’s c redit ca rd and telephone r ecor ds online. Mot h er al l eg ed that her difficulties with Father ha d arisen sinc e he

rema rried. She c laimed that Fa ther a nd his family

made de g radingcomments about Mother in the prese nce of

the childre n. She also alleg ed that F ather and Mrs. Ada

ms lived t o get h er for thre e-3-

months prior to their marria g e, and that Mrs. Adams was pr ese n t o v er n i g ht during the childre n’s visitation wit h Father duringthat time. The par ties consente d to psycholog ical custodial eva luations of Mother, F ather , Mrs. Adams, and the two children.

On or aro un d O c tob e r 2 2, 20 06 , a n a lte rc a tio n o c c ur

re d b e tw e e n M other and her pa re nts during supervised visitation at Mother’ s pare nts’ house. Mot h er obtained an orde r of pr otection ag ainst her f

ather on or about Nove mber 14, 2006, and there afte r, Mother’s mother and sister re fused to supervise Mother ’s vi sitation. As a re sult, Mother only had telephone contac t with the children for se vera l weeks. In the meantime, Dr . Robert Kennon, a licensed psycholog ist, beg an intervie wing the par ties for their c ustodial e valuations. He wrote a letter to the court encour ag ing the appointment of ano t h er person to super vise visitation. Dr. Kennon a cknowledg ed F ather ’s conc erns r eg arding the childre n’s safe ty

a n d r ecommende d that Mother’s visitation continue to be super vised. Howe ver, Dr. Ke nnon expressed conc erns that the c hildren would be c onfused a nd ex p er i en ce separ ation anxiety if they had no visitation with Mother. On or ar ound Dec ember 2, 2006, a conse nt order w as enter ed allowingMother’s c ousin to s upervise visitation. Following a hea ring on April 25, 2007, Father a g ree d that Mother should be g rante d unsupervised visitation.

Approxim ately twenty -three witnesses testified over the course of a four- day trial. Madison

was e leven y ear s old at the time, and Connor turned se ven y ea rs o l d d u ri n g the proc eeding s. Dr. Ke nn on te sti fi e d a s to the re su lts of the ps y c ho log ic a l c us tod ia l e va luatio ns he pe rf or me d a nd a lso

s u b m itted a thirty -three pag e re port containing his findings. Dr . Kennon ha d conducte d ps y c ho log ic a l te sti ngand int e rv ie ws of

Mo the r, F a the r, Mr s. Ad a ms, and the c hil dr e n, and he a lso interviewe d Mother’s mother and sister. Althoug h Mother’s mother and sister re ported many

c on c e rn s a

bo ut M oth e r’ s b e havio r, Dr

. Ke nn on fo un d that his int e rv ie w wi th t he m “ re ve a le d th e ir love for [Mother],” and Dr . Kennon noted that he did not perc eive any attempt by Mother’s mother or sister to under

mine Mother’s a

uthority

.
Both Mother

and F ather repor

ted drinking occa sionally , but Dr. Ke nnon found that neither pare nt exhi bited signs of

alcohol or dru g d ep en d ence . He a lso found that neither pa rent showe d signs of psy chopat hology , althoug h both pare nts had persona lity issues. Dr. Ke nnon found that Father ha d “a history

of admitted passivi ty ” in his relationships with the children a nd others. Dr

. Ke nn on tes tif

ie d th a t “ the g re a te st w e a kn e ss [h e ] fo un d” wi th F a the r, and “ on e of his on ly

we a kn e sse s, ” wa s th a t F a the r a vo ids in ter a c tin g wi th M oth e r, le a vin g the re sp on sib ili ty to M rs

. Ad a ms. He a lso fo un d tha t Fathe r’ s att itu de tow ard Mo the r w a s n e g a tiv e and

bo rd e rl ine jud g me nta l. Father a d m i t t ed t h at he was hesitant to discipline the children be cause he fe lt sorry for them. Dr

. Kennon testified that he thought Father acte d appropr iately in f iling the petition to modify due to the problems that Mother wa s having

.

Dr. Ke nnon found that Mother h ad d em onstrated “ err atic cha ng es in her be haviors,” inc lud inghe r a dmi tte d inv olv e me nt wi th a marr ie d man, he r imp uls ive de c isi on to have a pa rt y wi th teena g e males at her home, a nd her rec ent conflicts with he r own family members. He found that Mo th e r ’ s a c ti o n s s u g g e s te d “ p r o b le mati c mo d e li n g o f a p p r o p r iate r e lati o n a l b o u n d ar ie s f or her children.” Dr. Ke nnon also found that Mother ha d attempted to manipulate the c hildren and note d-4-

that “[t] hese ty

pes of a ctions can be emotionally ab u s i v e. ” Dr. Kennon found that Mother “communicates excessive amounts of infor mation to Madison” about Mother’s c onflict with Father

an d t h e cu s t o d y

case . Dr. Ke nnon stated that Madison wa s awa re of “deta ils which were not appropr iate to Madison’s ag e and de velopmental c o n fl ict,” which c ould lead to anxiety and d ep ressive sy

mptomatology

as a r esult of beingoverbur dened w ith adult responsibilit ies. Dr. Ke nn on a lso fo un d th a t Mo the r f

os te rs a de g re e of de pe nd e nc y wi th Con ne r so that he ha d b e c ome hig hly e mot ion a lly

de pe nd e nt on he r. Dr

. Ke nn on no te d th a t Mo the r s le pt w ithConne r o n a nig htl y basis and re p o rt ed
, “This is inappropriate for his a g e and should be modified immediately .” Dr

. Kennon f ound that Mother tends to rationaliz e beha viors and blame h er problems on other ind ivi du a ls. He fo un d tha t the ma jor ity of the c on fl ic t bet

we e n M oth e r a

nd Mr s. Ad a ms w a s d

ue to Mother and he r unjustified ang er a nd animosity

toward Mr s. Adams.

Dr. Kennon found that Mrs. Adams was “the most re alistic of the three ad u l t s ev al u ated.” He explained that Mr s. Adams understood the children’ s need to visit with Mothe r, while displaying appropr iate conc ern r eg ardingMother’s e rratic behavior

.

Dr. Ke nnon administered a test to both children ca lled “the B ricklin Perce ptual Scales,” whi ch he describe d as a te st to determine how c hildren per ceive their par ents. He e x plained that

“ wh e n th is t e st w a s b e ingstu die d, it a g re e d w iththe Cou rt ’s fi nd ing s 9 7% of

the tim e

. So, it h a s a pretty high reliability fac tor with w hat the Court e nds up awa rding in the end.” B oth Madison and Conner’s test re sults indi cate d that Mother wa s their par ent of choice

. Despite the children’ s stated pr e fe re nc e to l ive wi th M oth e r, Dr . K e nn on te sti fi e d th a t c hil dr e n d o n ot a lw ay s kn ow wh a t is b e st fo r t he m.
Although D r. Ke nnon did not s p ecifically rec ommend that either pa rent be named the primary residential pa

rent, he testified that Father wa s “qui t e capable” of being the primary

re sid e nti a l pa

re nt. Dr . K e nn on

state d th a t th e re wa s n oth ingto i nd ic a te , f ro m a c lin ic a l st and

po int
, that Mother would be unf it to be named primar

y residential pa

rent. How ever , he said she ha d demonstrated ne g ative, er ratic be haviora l chang es since the divorce . Dr. Kennon stated that Mother had “c hara cter lo gi ca l i s s u es , ” b o u n d ary i s s u es , u n re s o l v edan ger

t o wa rd Father, a

nd unjustified ang er and animosity

toward Mr s. Adams. Dr. Kennon recommended that Mother underg o insight oriente d

c ouns e lin g and

tr e a tme nt, statin g that sh e wa s in ne e d o f “ imp ro ve d awa

re ne ss of he r i na

pp ro pr ia te behavior .” As for F ather , Dr. Ke nnon rec ommended “br ief c ounseling and incr ease d understanding of the pa ssive role he maintains with [ Mother].”

At trial, Mother’s mother
, Mrs. Patty Stafford, te stified that she had he ard Mother threaten to harm F ather , Mrs. Adams, and Father’s parents many times, and she conside red the threats to be serious. F or example, reg ardingMrs. Adams, Mother ha d stated that she would f ind he r and “ g et her,” she just didn’t know when or wher e. Mother had also alleg edly told Conn o r, o n s ev er al

occa sions, to vomit in Mrs. Adams’s face

. Mrs. Stafford testified that Mother tol d her that “as soon as this is over and she g ot her ha nds on the children, that she’d be g one and nobody would see the m ag ain.” Mrs. Stafford testified that she di d not approve of Mot her’ s most rec ent boy friend, E dwar dM ot he r ha d r e po r t e d t o Dr

. Ken no n t ha t on t he ni gh t of t he a l t e r c a t i on a t he r pa r e nt s ’ ho us e , s he was 1

f r us t r at ed and bega n “ pac ki ng up he r s t uf f

. ” I t a ppea r s t hat M ot her i nt ende d t o l ea ve t he hous e w i t h t he chi l dr en.

-5- Reams, bec ause he was mar ried. Mother

had re cently

moved from B radf

ord to Martin, Tenne ssee, and Mother a lleg edly

told Mrs. St aff

ord that Mr. Reams was re nting a place for he r there

.
Mrs. Stafford te stified that many times, Mother appe are d to be “out of it” and unre sponsive, and she became worried t hat M other was using drug s or alcohol. Mrs. Stafford said Mother told her that she wa s taking nerve pills to make her “not car e” a nd also sleepingpills. Mrs. S taffor d rec alled

one occ asion in Fe bruar

y of 2006 when she and he r family went to Mother’ s house for Ma dison’s birthday party , and Mot her was “very
, very out of i t” and sleeping
, so that she har dly knew they

wer e there

. Mrs

. S t af

fo rd t est ified that on Mother’ s Day of 2006, Mother sat on the couch f or seve ral hours sleepingwith her head “dang ling” while ever y one else play ed outside with the childre n. She said the childre n would g o and try to wake Mothe r, but she wouldn’t re spond. Mrs. Stafford te stified that late one nig ht, Mr. Reams ca lled her a nd said he feare d that Mother had ove rdosed be cause he ha d b e e n una

ble to co nta c t Mo the r f

or se ve ra l ho ur s. He a sk e d M r. and Mr s. Sta ff

or d to g o to Mo the r’ s h ou se and c he c k on he r, statin g that he wa s un a ble to do so be c a

us e he wa s a t ho me wi th h i s f a m i l y. Mrs. Stafford r eca lled another night whe n Mother wa s suppose d to come see the children, but she did not ar rive u n t i l 1 : 3 0 o r 2 :00 a.m. Mrs. Stafford te stified that when Mother fi n al l y arri v ed
, t h e c h i l dre n ’s b ab y s i t t er , wh o wa s s i x t ee n y ea rs o l d at t h e ti m e of t ri al
, wa s dri v i n g, and Mother and Mr. Reams wer e in the back seat. Mrs. Staff ord said that whe n Mother g ot out of the ca r, she c ould hardly

stand up, she wa s g igg ling, a nd “ver y much under

the influenc e.”

Mrs. Stafford te stified about the diffic ulties she enc o u n t ere d when supe rvising Mothe r’s vis itatio n at he r h ome . She sa id Mothe r wa s a lw ay s at le a st f or ty -f ive min ute s late . A c c or din g to Mr s. Sta ff

or d, wh e n Mo the r did arr ive
, sh e wo uld lie on the c ou c h o r t a lk o n h e r c e ll p ho ne . M rs

. Sta ff or d te sti fi e d th a t on

on e oc c a sio n, Mo the r b ro ug ht M r. Re a ms w ithhe r t o M rs . St a ff or d’ s h ome fo r s up e rv ise d visi ta tio n, and Mo the r’ s f

a the r a sk e d M r. Re a ms t o le a ve . M oth e r r e po rt e dly be c a me very upset and said she would never be back. Mrs. Stafford te stified about another occa sion when sh e a sk e d M oth e r n ot t o b ri nghe r d ogwi th he r to visi ta tio n be c a us e it h a d f

le a s, and Mo the r b e c a me very upset. The ne x t morning, Mr s. Stafford found Mother and the children sleeping outside in the

car . Mrs. Stafford te stified that when it wa s time for her to take the c hildren bac k to Fathe r’s house, Mother would intentionally make them late by

g oing out on the f

our-whe eler

with the kids and ref using to c ome bac k. Mrs. Stafford said Mother would “drill” the children on howto show that the y wa nte d to liv e wi th M oth e r. Mr s. Sta ff or d sai d Moth e r wo uld

te ll t he c hil dr e n to mis sp e ll the ir spelling w ords and make bad g rade s, and she told them to g o to the school counselor and say they wanted the ir mother. Mother a lso alleg edly showed disg uises to the children and told them to look for he r wa lking a

round the school.

Mrs. Stafford br iefly

des cr i b ed the alter cation with Mother whic h led to the orde r of protec tion. S h e s a i d

M o t h e r w o k e t h e c h i l dr e n a t ar o u n d 2 : 3 0 a

. m

. , t h e ns t art e d a c t i n g “ v e r

y u g l y” 1 to her a nd Mr. Staffor d and scr eamingand cur sing at them. She said Mother attacked he r, and Mr

.-6-

Sta ff or d p ull e d M oth e r o ff

of he r. She sa id M r. Sta ff

or d a lso pu t hi s h and ov e r Mothe r’ s mo uth to stop her fr om screa

ming a nd cursing

.
Mrs. Stafford c oncluded by stating her opinion that Mother had not pr ovided a stable
, structure d, consistent environment for the children since the divorce

. Mrs. Stafford stated that she had noticed a

positive chang e in t he children since they had been l iving with Father, a nd she thoug ht Father wa s doing “ a fine job” with the childre n.

Mo the r’ s F a the r, Mr . H arr e ll St a ff or d, a lso te sti fi e d th a t he beg an no tic ingc ha ng e s in Mother’s b ehavior soon after the divorce . He testified a bout Mother beingslumped over on the couch f or hours at a time, and he said on one occasion, he found a water bottle f ull of alcohol whe re Mother had be en lying on the co u ch

. Mr. Staffor d also testified that in September of 2006, Mr. Reams ca lled and said he was c oncer ned that Mother may have overdose d. Mr. Staffor d said he a nd his wife immediately

went to Mother’s home and let themselves in, wher e they found Mother on the couch “ out of it.” He said he went ba ck to Mother’ s house the next morning to che ck on her ag ain, and Mother a cted a s if she di d not remembe r them being there the nig ht before . Mr. Staffor d testified that Mother’ s house was g ener ally “a disa ster” a

nd scatter ed with dog fec es. Mr. Staff ord also testified that he ha d hear d Mother state that she could take the ch ildren and g o somewher e wher e she c ould not be found. Mr. Staffor d said he ha d no problems with Father re lating to c ustody or visitation.

Mr . St a ff or d te sti fi e d th a t Mo the r w a s n e ve r on tim e fo r s up e rv ise d v isi ta tio n, and he sa id

on so me da y s, sh e did no t show up a t all. Mr . Staf fo rd sa id w he n M oth e r w a s th e re , s he wo uld ta lk on her c ell p h o n e to her boy friend. H e testified a bout asking Mr. Reams to leave when Mother broug ht him with her. Mr. Stafford testified that on the night of the alterc ation with Mother, he ha d alre ady g one to bed, a

nd Mrs. Stafford came and woke him up, stating that she fea red Mother

was go i n g t o t ry t o l ea v e wi t h t h e ch i l dre n

. M rs

. S t af fo rdt o l d h i m t h at M o t h er

h adb ee nl o ad i n g t h i n gs into her ca

r and she had g one to wake up the children. Mr . Stafford e x plained that he a nd his wife

we n ti n t o t h e b ed ro o m wh er e M o t h er wa s wa k i n g t h e ch i l dre n , an d M rs

. S t af fo rd t o l d M o t h er

t o go to bed. He said Mother became irrational and “just went off” dis respe cting Mrs. Stafford w ith bad lang uag e. Mr. Staff

ord said he told Mother “ that she wasn’t g oing to disrespec t her mother in our house,” a nd when Mother

continued, he put his hand on her ja w and e scorted he r out of the house

. Mother’s sister, Tonya Staffor d, who had also supervised visitation for Mother, te stified as

we ll. She c ou ld no t recall a sin g le oc c a sio n w he n M oth e r a rr ive d to vis itatio n o n ti me . Sh e sa id when visitation was sche duled for a wee kend, Mother mig ht stop by sometime during the cour se of the day on Saturday , but she did not take advanta g e of her time w ith the children. She said she had hear d Mother tell Madison that if she would “ throw a big enoug h fit,” she c ould ge t what she wa nted from F ather

. Ms. Staf

ford said Mother had told Connor that he should do poorly in school so that it would look li ke he w as not happy and wanted t o be with Mother. She also told him to “go c rying to Miss Bever ly ,” the sc hool counselor, a nd say that he missed Mother. Ms. Stafford ha d also hea rd Mo the r te ll Conn or to vom it in Mrs . Ada ms’ s fa c e . M oth e r h a d to ld M s. Sta ff or d, re g ard ingMr s. Ad a ms, “ I t ma

y take me a wh ile to fi g ur e ou t ho w to do it so no bo dy c an pin it on me , bu t I ’l l ki ll-7-

t h at b i t ch

. ” M o t h er

h adal s o al l e g e d l y t o l d M s

. S t af fo rdt h ats h e c o u l d

t ak e t h e c h i l dre nan d

go somewher e wher e no one would ever see them ag ain. Ms. Staf ford testified that the ch i l d re n had made positive improvements since living with Father.

L eslie McEw en Hicks
, M o th e r ’ s c o u s in wh o s u b s e q u e ntl y s u p e r v is e d visitation, t estified that Mother wa s very

active dur ing the visits s he super vised. Ms. Hicks said she thought both Mot her and F ather

wer e g ood pare nts.

Mother’s a

unt, J eanine Howar d, who is Mr s. Stafford’ s sister, also testified. She said she ha d

n o d o u b t t h at M o t h er ’s m o t h er , fa t h er , an d s i s t er wo u l d l i e ab o u tM o t h er

b ec au s e o f h ar d

fe el i n gs that exis ted over

other fa mily issues. Ms. Howard a lso sa id that if any other witnesse s testified that Mother had thr eate n ed Fa ther or Mr s. Adams, then those witnesse s were ly ing too. Ms. Howa rd acknow ledg ed, thoug h, that she does not see Mother ver y often beca

use she lives a cross the state

. Ms. Howar d said she come s to visit West Tennessee “spora dically ,” on ho l i day s and spec ial

occa sions.

A six teen- y ear -old boy

named Jeremy

testified that he kne w Mother f rom mowing he r y ard and his previous visits to Mot her’ s house to see he r baby sitter, who was his g irlfriend at the time. He sa id Mother had shown him picture s o n h er ce l l p hone of he r nude br easts. He also said one night when he was at Mother’s house and Mother was drinking
, she pulled up her shirt a nd exposed her br easts to him while wea ring a see -throug h bra.

L aina Stree t testified that she pre viously worke d at the school whe re Mother worke d as the school nurse, a

nd she consider ed her self a f riend to Mother. She te stified that once w hen she w as in the teac her’ s lounge with Mother at school, Mother showed he r a pic ture of herse lf, nude fr om the waist up, on her c ell phone. Ms. Street a lso said Mother had told her about stripping at a cl u b on amateur night, and Mother said it was addictive beca use she g ot a lot of money . Ms. Street said she had see n a pornog raphic DVD c ase, w ith naked people on the cove r, lying out in the ope n at Mother’s house when c hildren we re pr esent.

Sha r o nH o o k e r

te s ti f ie d th a t s h e a ls o w o r

k e d w it h M o th e r a t t h e s c h o o l. Sh e s a id

Mother showed he r and othe r employ ees at the school an inappr opri at e p i ct u re of her self, nake d from the

wa ist up , on he r ce ll pho ne

. Ms. Ho ok e r al so te sti fi e d th a t Mo the r h a d to ld h e r t hat “ a ll s he ha d to do was say

the word,” and she c ould have F ather killed or beaten up bec ause he r newboy friend w as in Hell’s Ang els. Ms. Hooker te stified that she cle aned Mother’s house a fewtimes after

Mother’s divorce , and she de scribed the house as being in ba d condition. She sa id Mother and the two kids appar ently

slept in the same bed w ith their two dog s and two cats. Ms. Hooker sa id there w as cat litter in the beds, dog fec es on the floor s, and once, there was human fec es in the children’ s shower. Ms. Hooker sa id that she quit clea ning Mother’s house beca use she would have bites or welts on her fac e and ha

nds after being in Mother’s house.

Be verly Summers, the school’s g uidance couns elor, testified about an experienc e she ha d with Mother. She testified that af ter the t em porar

y restra ining or der w as ente red a g ainst MotherW e not e t hat M r s

. A dam s and Fa t her ’ s m ot her al s o w or ked at t he s am e s chool w h ere M o t h er w o r ked. 2

H o w e v e r, M r. M c C a rtn e y sta te d th a t t h e c o m p la in ts d id n o t co m e fro m e ith e r o f th e m

.
-8- requiringsupervised visitation, the school’s attorney advised the staf

f that Mother c ould not visi t the children at sc hool unle ss she had an approve d adult with he r. Ms. Summers said Mother a rrived at school one da

y unattended a

nd went to the lunchr oom to see Madison. Ms. Summers approa ched Mother and told her

that it was th e s t af

f’ s u nderstandingthat Mother could not be visiting the children at school without an approve d adult. Ms. Summ ers sa id she asked Mo t h er t o p lease not make a scene at the school, but Mother responded with a defiant attitude and si mply said, “I ’m g oing back in there.” Mother we nt back in to wher e the c hildren we re, a nd Ms. Summ ers stay ed to observe until Mot her le ft. On another day
, Mother arrived at the s chool wit h her mother , Mrs. Stafford, but the n w e nt o ut int o th e ha llw ay wi th M a dis on

a lon e and

wi tho ut s up e rv isi on . M s. Sum me rs a g a in followed Mother

to supervise.

Th e Sup e ri nte nd e nt o f t

he B ra df or d Sp e c ia l S cho ol Distr ic t, B ob by Joe M c Cart

ne y , a lso te sti fi e d at tr ia l. H e sa id t hat Moth e r ha d wor

ke d as t he sc ho ol n

ur se fo r f ive y e ars , b ut s he “ ha d to

re sig n” in Augus t of 200 6. He sa id dur ing the pr e vio us sc ho ol y e ar, he re c e ive d s e ve ra l c omp la int s about Mother ha

ving por nog raphy on her c ell phone. Howe ver, he did not take ac tion because it was

near the end of

the school y ea r. At the beg inning of the cur rent school y ear , Mr. McCar tney informed a ll the employ ees that if any one wa s repor ted for ha ving por nog raphy on their ce ll phone, they would be immediately

dismiss ed. Still, a few da y s later, it was a g ain re ported that Mother had pornog raphy

on h er ce l l p h o n e. Mr. McCar tney said he ha d also rec eived c omplaints from the 2 principal that many

of the hig h school students were spending too much time at the nurse’ s station. Mr. McCar

tney said that based on these complaints, he met with Mother and “told her at that time, if she would re sign, I

would let her resig n, beca use I alway s do that.” Howe ver, if Mothe r re fused to resig n, she would have been te rminated.

Kar en Harrison, a phy sician’s assistant who re g ularly trea ted the childre n at the loca l clinic, testified by

deposition. She said that in Dece mber of 2005, Mothe r broug ht Connor in with an ear inf e c tio n a nd re po rt e d th a t sh e ha d g ive n him an inj e c tio n of a spe c if ic anti bio tic the pr e vio us nig ht. Ms. Harr ison told Mot her that the antibiotic she had g iven Connor was not appropr iate for tre ating

an ea r infec tion, a

nd its side eff

ects could lead to hear ing loss. Ms. Har rison also noted that, to her knowledg e, no one ha d presc ribed that a ntibioti c for

Connor. She als o s t at ed that it was not appropriate for Mother to injec t a ny ty pe of antibiotic at home
, outside of a clinical se t t i n g. On

ano the r oc c a sio n, Ma dis on wa s br ou g ht int o the c lin ic by he r g ra ndmot he r f or an in g ro wn

toe na il. Madison’s g randmother

had a ba g of medications that Mother had instructed her to g ive to Madison. Ms. Harr ison testified that she had ne ver pr es cr i b ed at least one of the medic ations in the bag for Madison, as it wa s not a

pproved for use in pe diatric patients. She stated that the drug was indicated for the tr eatment of

pneumonia and sinusitis in adults.

Mother’s ba

by sitter, Har

mony , was six teen y ear s old at the time of trial. She testified that she attende d school wher e Mother w orked a s a nurse, but she had be en baby sitti ng for Mother for about three y ear s and thought of mother like a sister. H armony testified that she invited one f riend-9-

to Mother’s house on the night of the par ty on Aug ust 19, 2006. Howeve r, Ha rmony said she had to leave Mothe r’s house a fter a bout thirty

minutes beca

use her mother made her come home. Har mony testified that she ha d never seen a lcohol, drug s, or pornog raphy at Mother’ s house.

A y oung man named Wade Mathis testified that he wa s at t he par ty at Mother’ s house the pr e vio us su mme r. Mr . M athi s wa s tw e nty y e ars old a t th e tim e of

tr ia l. H e sa id h e arr ive d w ithhis friend Jamie afte r midnight, and there wer e people there who wer e drinking alcohol undera g e. He

sa id M a dis on

and Conno r w e re awa

ke and ru nn ing aro un d the ho us e in the pr e se nc e of the pe op le drinking . Mr. Mathis said there wer e six to seven males prese nt, but Mother and Madison we re the

on ly fe ma le s. He sa id he saw “d ir ty da nc ing ” that invo lve d “ tou c hin g on e a c h o the r. ” Mr . M a thi s
sa id p e op le we re c omi ngand g oin g , a nd he le ft a ft e r a bo ut f if te e n mi nu te s.

J ustin Tanner te stified that he was also at the par ty at Mother’ s house. He w as twenty y ear s old at the time of trial, but n i n etee n at the time of the pa rty . Mr. Tanne r testified that Mother ’s baby sitter called him and invited him to the party
, and he said that he stay ed at Mother ’s house fr om 11 : 0 0 p

. m

. t o 5 : 0 0 a

. m

. H e s a i d t h e b a b y s i t t e r w a s t h e r e w h e n h e ar r i v e d
, an d o t h e r m a l e g ue sts

came and we nt throug hout the ni g ht. Mr. Tanner said he observed underag e drinking i n the pre sence of the c hildren, and some of the people at th e p ar t y we re u n d er the ag e of e ighte en. He

a c kn ow le dg e d th a t he wa s d ri nk ing un de ra g e and sa id Mothe r bou g ht the a lc oh ol f or him . H e a lso said he ob s er v ed “the kind of da ncing y ou’d proba

bly see in a club.” Mr. T anner

testified that he beg an a sexual re lationship with Mot her on the night of the par ty , and that he w ent over

to Mother’s house seve ral more times in the nex t few wee ks to have se x . He sa id sometimes the children we re prese nt when he w ould go to Mother ’s house to have sex. Mr. Tanner te stified that Mother sometimes a

ppear ed to be incohe rent or “ out of it,” and she a dmitted to “taking pills.” Mr. Tanne r testified that prior to his deposition, Mother aske d him to li e for her a nd “make the story

sound clea

n on her side.”

Br ian Hutson, who wa s nineteen at the time of trial, testified that he w as at t h e party at Mother’s house , and he kne w Mother from her job as t he school nurse . He a cknowledg ed see ing two pe op le dr ink ingun de ra g e a t Mo the r’ s h ou se . H e sa id h e saw d anc ing , b ut it wa s n ot s e xua l in nature . Mr. Hutson said Mother and Madison wer e danc ing tog ether , and he a nd another

g entleman

wer e danc ing at the same time. Mr. Hutson wa s not awar e of a ny sexual relationship betwee n Mother and Justin Tanner, and Mr . Hutson said he was the l ast one to leave at around 4:30 or 5:00

a .m. Mr

. Hutso n sa id he wa s in vit e d to Mo the r’ s h ou se on ano the r o c c a sio n, by

Justi n T ann e r, to shoot firewor

ks.

Dw ay ne Re y no lds , w ho is a

sh e ri ff ’s de pu ty , te sti fi e d th a t he wa s a t Mo the r’ s pa rt y . H e sa id that he did not see any one drinking, but he could not be sure that no one wa s drinking that night. He

sa id h e wa s “ in a

nd ou t of the ho us e a

lot ” be c a us e he wa s ta lki ngto p e op le ou tsi de . H e a lso sa id Connor was play

ing outside. Mr. Rey

nolds f irst sa id the dancing he observe d was not inappropr iate, bu t th e n h e e xpla ine d th a t it wa s ina pp ro pr ia te in the pr e se nc e of c hil dr e n. Mr . Re y

no lds sa id h e did not observe a

ny thing se x ual occ urringbetwee n Mother and J ustin Tanne r, “other t han the da ncing ,” but Mr. Tanne r wa s still there when he left.-10-

Chr is Joh ns ton e , w ho is a state tr oo pe r, te sti fi e d th a t he wa s a lso a t Mo the r’ s p art y . H e sa id he sa w Jus tin Ta nner dri nk in g a lc oh ol, and he saw t he ty pe of da nc ingthat y ou

wo uld se e a t a nightc lub. He said the c hildren we re a wake , playing a

nd watchingtelevision.

Father’s cu rr en t wife, Mr s. Adams, testified about a n alterc ation she had w ith Mother on Christmas Day

of 2005, whe n Mother wa s seven hour s late pi cking up the children for he r visitation. She sa id t he y dis c us se d an ins ult ing c ard Mo the r ha d se nt to he r, the n Mo the r s tart e d in su lti ngMr s. Adams’ s o t h er c hildren. The a rg ument esca lated, and a ccor ding to Mrs. A dams, Mother “ took a swing ” at h er , s o she hit Mother. This was witnesse d by the childre n. Mrs. Adams also testified about insulting we dding g ifts Mother s ent t o her through the children, suc h as an a pron with a picture of the “ wicked stepmother” f rom Snow Whi te, which r ead, “ Quee n’s Poisons – C all 555-I MAWI TCH.” Mrs. Ada

ms testified that Madison broug ht a cell phone from Mother’s house that had

sever al picture s on it of someone’s ba re bottom, and a

nother picture of Mother’ s cleavag e.

Father testified that he and Mrs. A dams liv e i n a newly constructe d house with her thr ee
c hil dr e n f ro m a pr e vio us marr ia g e , a

nd Ma dis on and Conno r, and

e a c h c hil d h a s th e ir

ow n b e dr oo m. F a the r e xpla ine d tha t Mrs . Ada ms g e ts the c hil dr e n re a dy fo r sc ho ol in the mor nin g s bec a

us e he is alre ady at work, a

nd Mrs. Adams then take s the children to sc hool beca u s e s h e teac hes whe re the children attend school. Father said he g ets home fr om work at a round 3:00 p.m. and is home when Mr s. Ad a ms a

nd the c hil dr e n g e t home fr om sc ho ol. He te sti fi e d th a t hi s p are nts liv e ne xt doo r t o him , b ut t he c hil dr e n r e g ula

rl y vis it b oth se ts of the ir g ra nd pa re nts – bo th M oth e r’ s p are nts and his pare nts.

Father a cknowledg ed that he moved in with Mrs. Adams for a short time before they

wer e
marr ie d, bu t he e xpla ine d th a t hi s h ou se wa s d e str oy e d by a tor na do , he wa s a lr e a dy

e ng a g e d to Mr s. Ad am s , an d

h e h adn o wh er e e l s e t o go

. Fa t h er s t at ed h i s o p i n i o n t h at M o t h er wa s n o tp ro v i d i n g a stable environme nt for the c hildren. He testified that he trie s to f oster a g ood relationship between the childre n and Mother, but he said it was difficult beca use “she likes to a g itate.” F ather testified that he ha d b e e n g oin g to co un se lin g , an d he sa id t hat if he wa s d e sig nate d p ri mary re sid e nti a l pa

re nt, he would do eve ry

thing he could t o fac ilitate a g ood relationship between the c hildren and Mother

.
Mr. Reams testified that he was curr ently in the proce ss of a divorc e, but he a cknowledg ed dating Mother from approximately Marc h of 2005 throug h November of 2006. He testified that he

never saw Mother

under the influence of any substance, and he denied that he was e ver c oncer ned about her overdosing . Mr. Reams said he had b ee n t o M o t h er’ s house “a time or two” since they broke up, but not in the past thre e months.

Mother testified that she was thirty -seve n y ear s old at the time of trial. Mother c laimed that Mo the r’ s mo the r, fathe r, and sis te r a ll l ie d in

the ir te sti mony . M oth e r d e nie d ma kin g any thr e a ts ag ainst Father or Mr s. Adams. She admitted being late to supervise d visitation but said she wa s not consistently

lat e. S h e cla imed that she only slept on the couc h during supervised visitation at her pare nts’ house on one oc casion whe n she wa s tired from wor kin g. M o t h er s aid s he droppe d the order of protec tion ag ainst her f ather and sent he r family

a letter , but they

had not contac ted her

.-11-

Mo the r d e nie d e ve r t a kin g ill e g a l dru gs, and sh e int ro du c e d th e ne g a tiv e re su lts of a ha ir fo lli c le dr ugte st s he ha d ta

ke n ju st p ri or

to t he fi rs t da

y of tr ia l in May of 20 07 . S he admitte d to taking anti-anxiety medication when she needed it

. Mother admitt ed g iving Connor a ntibioti cs that

wer e not pre scribed f

or him, but she said she didn’t rec all g iving him antibiotics by injection. When asked about Ms. H arr ison’s testimony to the contra ry , Mother said she did not think M s. Harr ison “lied intentionally , but things g et mix ed up.” Mothe r testified that her 2007 nursing drug handbook indicated that the dr

ug she g ave to Ma dison was appr opriate to g ive to children w eigh i n g over 88 pounds. She admitted, though, that the drug had not bee n presc ribed for Madison.

Moth e r d e n ie d e v e r ta

k in g p ic tu

r e s o f h e r b r e a s ts o n h e r c e ll p h o n e

. Sh e s a id th e six teeny e ar- old wh o te sti fi e d tha t Moth e r expo se d he r br e a sts to him and sh ow e d him nud e pic tur e s si mpl y lied. Mother also insisted that she wa s not asked to re sign f rom her job a s a school nurse, a nd she

sa id t he sc ho ol s up e ri nte nd e d w ho te sti fi e d to the con tr ary “ a pp are ntl y lie d. ” Mo the r s a id M s. Hooker lied in her testimony

as we ll, but she di d not specify what she lied about. M other said he r former co-w orker , Ms. Street, lied when she said Mother ha d stripped at a c lub on amateur night.

Reg arding the party at her house i n Aug ust 2006, Mother testi fied that she di d not invite the p eo p l e w h o we re t h er e. S h e s ai d t h er e w as n o al co h o l i nh er h o u s e, an d

t h er e w as n o d i rt y

d an ci n g. Mother said she da

nced w ith Madison. She also said that the children were “whe re I could see them pretty much the whole time.” Mother said the pa rty was “ a mistake a

nd it was not intentional.” Mo the r d e nie d th a t sh e e ve r h a d a se xua l re la tio ns hip wi th Justin Ta nn e r an d sai d he lie d dur inghis testimony

. Mo the r a lso sa id Wa de Mathi s li e d d ur inghis te sti mony . Wh e n a sk e d w he the r C hr is J ohnstone, the state troope r, als o lied about the par ty , Mother said, “ I ’m not saying he lied. I ’m saying that Imay

not have se en eve ry

thing he saw.”

Mother admitted that she a cce ssed Father’s c redit card and telephone rec ords online without his pe rmission, but she said she quit after being contac ted by

Father’s attorney

. As for the alterc ation wi th M rs . A dams, Mo the r s a id sh e wa s sim ply ta lki ng to F a the r in his dr ive wa y wh e n M rs . A dams
came outside cursing at her and attempted to h i t h er. Mother said she just drove a way . Mother admitted leavingConnor at home alone on one occ asion. She said Connor beg g ed to stay home by himself while she we nt to run an er rand. Mother

said she wa s only

g one ten minutes, and w hen she returne d, the sherif

f wa s there be cause Connor beca me af raid a nd called 911.

Mother stated that she had re cently moved to Martin bec ause she could no longe r func tion to the best of her

ability in Bra dford. She sa id she moved to M ar t i n for its job opportunities and school sy stem. She testified that she ha d rec ently acc epted a

position as an administrative nursing direc tor at a g roup hom e. Mother said it was an e rror in judgment f

or her to date Mr. Rea

ms when he wa s still marr ie d, bu t sh e c la ime d th a t sh e ha d n ot b e e n in his pr e se nc e in t

he pa st thr e e mon ths

.

Mo the r t e sti fi e d th a t sh e tho ug ht F a the r o nly fi le d th e pe tit ion

to m od if y so th a t he c ou ld avoid pay ing c hild support. She acknow ledg ed, howeve r, that Father had not a sked her to pa y any child support in the y ear since h e h ad been g rante d temporar y custody , and in fa ct, Father ha d continued to pay

child support to her for

approximately fo u r m o n t h s when he had custody of theA l t hough M ot her onl y l i s t s t hes e t hr ee i s s ues i n her br i ef
, s he at t em pt s t o r ai s e var i ous ot her i s s ues i n t he 3

ar gu m ent s ect i on of her bri ef

. W e w i l l at t em pt t o add r es s ea ch of t hes e i s s ues w here appropri at e.

-12- c hil dr e n, and

Mo the r ke pt the mon e y

. Mo the r sa id sh e tho ug ht it wa s in the c hil dr e n’ s b e st i nte re st to move with he r to Ma

rtin beca use the children wer e happier living with he r. Mother testified that

s h e h a d s e e n F a t h e r p u s h t h e c h i l dr e n an d h o l d M a d i s o n u p s i d e d o w n w h i l e s h a k i n g h e r v i o l e n t l y. Mother admitted that she still sle eps with both of her children, de spite Dr. Ke nnon’s

rec ommendation, beca

use their time tog ether

is so precious.

Ms. H ooker, who previously worke d at the school with Mother a nd clea ned her house, wa s
ca l l ed t o t es t i fy

ag ain as a

rebuttal witness. She testified that she saw Mother in her c ar w ith Mr. Reams when sitting at a r ed lig ht in Martin just one month earlier, on June 22, 2007. She said she followed them a

nd saw them pull in the g ara g e at Mother ’s house.

The trial judg e allowe d Madison to testify “at the insist ence of Mot her.” Madison was e leven y ear s old at the time. Madison testified that she l oved both her pare nts very

much. She said that she likes living with Mother a nd would not mind chang ing schools. She said she cur rently makes A’ s and B ’s and was on the “B Honor Roll.” Madison testified that Father had held her upside down and shook her one time when her pare nts were still marrie d afte r she g ot gum in F ather ’s hair.

Madison testified that on the night of the pa rty at Mother’ s house, she saw two boy s drinking beer , and she da

nced with Mother. Madison also testified about the altercation between Mother and Mr

. and Mr s. Sta ff

or d duri ng su

pe rv ise d vis itatio n. She state d th a t Mo the r “ wa s g oin g to t a ke us to the trailer to sle ep,” and Mr. Stafford came in and pushed Mother down the hall. She desc ribed the trailer a s her “ g randma ’s old trailer r ight a cross the g rave l.”

At the conclusion of t he proof , the trial judg e extensively discussed the testimony

prese nted

and c on c lud e d that the re ha d be e n a ma te ri a l and

“ dis tur bin g c ha ng e in c ir c ums tanc e s in

the ho me of the mother.” The trial c ourt revie wed e ach o f t h e appli cable statutory best interest fa ctors and

c on c l u d e d t h a t F a th e r s h o u l d b e t h e c h i l dr e n ’ s p r i m ar y r e s i d e n t i a l p ar e n t

. M o t h e r w a s o r d e r e d to pay Father’s attorney ’s fe es. Althoug h the final orde r did not addre ss t h e p ar t i es ’ petitions for contempt, a c onsent order was subsequently enter ed which dismiss ed all remaining claims. Mother timely filed a notice of appe al.

II. I SSU ES P R ESENTED
On appe al, Mother pr esents the f ollowing issues for

revie w: 3 1. Whe the r t

he tr ia l c ourt

e rr e d in fi nd inga ma te ri a l c ha

ng e in c ir c ums tanc e s; 2. Whe the r i t is in t

he c hil dr e n’ s b e st i nte re st f or F a the r to be name d pr ima ry re sid e nti a l pa

re nt; 3. Whe the r t

he tr ia l c ourt

e rr e d in awa rd ingF a the r a

tto rn e y ’s fe e s.-13-

Additionally , Father pre sents the following issue for r eview:

4. Whe the r F a the r s ho uld be awa rd e d h is atto rn e y ’s fe e s in c ur re d o n a pp e a l.

For the following rea sons, we af firm the dec ision of the ch an ce ry co urt. I n addition, we aw ard Father his attorne y ’s fe es on appe al and r emand f or dete rmination of an a

ppropriate fee

.

III

. D I S CUS S I ON

A. St andards for Modifying a C ustody Order

A c us tod y de c isi on , o nc e ma de and imp le me nte d, is c on sid e re d r e s ju dic a ta up on the fa c ts in exi stence at that t i m e, or those that were rea sonably fore seea ble when the decision wa s made. C u r t i s v . Hill
, 21 5 S .W.3d

83 6, 84 0 ( Te nn . Ct . App . 2 00 6) ; Ke lle tt v . St uart , 206 S.W .3d 8, 14 (T e nn . Ct . App . 2 00 6)

. Exist ing c us tod y arr ang e me nts are fa

vo re d be c a

us e c hil dr e n thri ve in s ta

ble environments. Ke lle tt , 206 S.W .3 d at 14. S till, courts are a uthorized by

statute to alter a

custody

arr ang ement as r equire d by interveningcirc umstanc e s , o r “ a s th e exigenc ies of the c ase ma y require .” Tenn

. Co d e A n n

. § 3 6

- 6

- 1 0 1 ( a ) ( 1 ) ( Su p p

. 2 0 0 8 )

. T e n n e s s e e Co d e A n n o tate d s e c ti on 36-6- 10 1( a )( 2) (B ) p ro vid e s th e fo llo wi ngins tr uc tio n r e g ard ingc ha

ng ingc us tod

y , in pe rt ine nt p art :

I f the issue be fore the cour t is a modifi ca t i o n of the c ourt’s prior de cre e per taining to custody
, the petitioner must prove by a preponde ranc e of the evidenc e a material chang e in circ umstance. Amateria l chang e of c ircumstance does not requir e a showing of a substantial risk of harm t o the child. A mater ial chang e of c ircumstance may include, but is not limit ed to, failure s to adher e to the par enting plan or a n order of c us tod y and vis itatio n or ci rc ums tanc e s th a t make the pa re nti ngpla

n n o lo ng e r i n the best intere st of the child.

There fore , the “thre shold issue” in case s involving a proposed modification of an exis ting c ustody order is whether a

materia l chang e i n ci rcumstances has oc curr ed since the initial custody deter mination. Blair v. Badenh ope , 77 S.W .3d 137, 150 (Tenn. 2002) . “Only if the cour

t answer s thi s ‘t hres ho ld ’ q

ue sti on in t he a ff ir ma tiv e do e s it

pr oc e e d to pe rf

or m a ne w c omp arativ e fi tne ss
ana ly sis and the n de te rm ine wh e the r a ne w cu sto dy and vis itatio n ar ra ng e me nt is in the c hil d’ s b e st interests.” Krupp v. Cu nni ngham -Grogan , No. M2005-01098-COA- R3-CV, 2006 WL 2505037,

a t * 7 ( c i t i n g Kendrick v . Shoemak e , 9 0 S. W.3 d 5 66 , 5 70 (T e nn . 2 00 2) ; McEv oy v. B rewer , No. M2 00 1- 02 05 4- CO A- R3- CV , 2 00 3 WL 22 79 45 21 , at *2 (T e nn . Ct . App . N ov . 2 5, 20 03 )) . T he pa rt y petitioning to chang e the custody order must prove both that a mater ial chang e in circ umstances ha s
occur red a nd that a cha

ng e of c ustody

is in the child’s best interest. Ke lle tt , 206 S.W .3d at 14.

“The deter

minations of whether

a mater ial chang e in circ umstances ha s occur red a nd wher e the best interests of the child lie are fac tual questions.” In re T.C.D. , 261 S.W .3d 734, 742 (Tenn. C t

. Ap p

. 2 0 0 7 ) ( ci t i n g Tur ne r v . P urv is , No. M2002-00023-COA- R3-CV, 2003 WL 1826223, at *4 (Tenn. Ct. App. Apr il 9, 2003)). I n child custody case s, we re view a tr ial court’s f indings of fac t de-14-

novo upon the re cord a

nd presume the finding s are corr ect, unless the pr eponder ance of the e vidence is otherwise. Hass v. Kni ghton
, 67 6 S.W. 2d 55 4, 55 5 (T e nn

. 19 84 ). Un lik e thi s c ourt , tr ia l c ourt s
are in a posi tion to observe the wit nesses and to assess their c redibility

. Ke isl ing v . Ke isl ing , 196 S.W. 3d 70 3, 72 1 ( Te nn . Ct . App . 2 00 5) ; Buckles v. Riggs
, 106 S.W .3d 668, 676 (Tenn. C t

. App. 2003). Appe llate cour

ts are r eluctant to sec ond-g uess a tria l court’s c ustody decision whe re so much depends on the t rial court’s assessment of the wit nesses’ cre dibilit y

. Nelson v. Ne lson , 66 S.W .3d 89 6, 90 1 ( Te nn . Ct . App . 2 00 1) ; St e e n v . St e en , 6 1 S

. W

. 3 d 324, 328 (Tenn. Ct. App. 2001).

“ Cus tod y de c isi on s o ft e n h ing e on su bt le f a c tor s, su c h a s th e pa

re nts ’ d e me ano r a

nd c re dib ili ty during the proc eeding s.” Jo ine r v . G rif fi th
, No. M2004- 02601-COA- R3-CV, 2006 WL 2135441, at * 2 (T en n

. C t

. Ap p

. J u l y

3 1
, 2 0 0 6 ) ( ci t i n g Adelsperge r v. Adelspe rger , 970 S.W .2d 482, 485 (Tenn. Ct. App. 1997)). As such, a trial court ha s broad d i s cr etion to fashion a c ustody and visitation

arr ang ement that best suits the uni que circumstance s of t he ca se. Id. at * 2 (c i t i n g Parker v . Parker
, 986 S.W .2d 557, 563 (Tenn. 1999) ). “It is not the func tion of appellate courts to tweak a visitation order in the hopes of a chievinga more rea sonable re sult than the trial court.” Eldridge v. Eldridge
, 42 S.W .3d 82, 88 (Tenn. 2001). I f no er ror in the tria l court’s rulingis evident from the r ecor d, the ruling must stand. Id. I n s um, a tr ia l c ourt ’s de c isi on

re g ard in g c us tod

y sh ou ld b e se t a sid e on ly when it “f alls outside the spectrum of ruling s that might re asonably result from a

n application of the

corr ect lega l standards to the e vidence found in the re cord.” Curt is , 215 S.W .3d at 839 (quoting E l d ridge
, 4 2 S. W. 3 d

a t 8 8 )

. We w il l r e v e r s e o r mo d if y th e tr ia l c o u rt’ s c u s to dy d e c is io nif

we conclude that the decision rests on an err or of law, if the evidenc e pre ponderates ag ainst the finding that there has bee n a mater ial chang e in circ umstances, or if the evidenc e pre ponderates ag ainst the

c ourt ’s fi nd inga s to the c hil dr e n’ s b e st i nte re st.

1. A Mat erial Change in Circum stances

There are no brig ht-line rules for deter mining whe ther a

materi al change in circumstanc es ha s o c c u r r e d
, b u t s o me o f

th e ma n y c o n s id e r a ti o n s r e le v an t t o th e is s u e in c lu d e : “ ( 1 ) w h e th e r the chang e occ urre d afte r the e ntry of the orde r soug ht to be modified, (2) whether the cha ng e wa s not known or re asonably

anticipated w hen the or der was enter ed, and (3) whether the chang e is one that aff ects the child’s well-being in a meaningf ul way .” Boy e r v

. He imer mann , 238 S.W .3d 249, 256 (T en n

. C t

. Ap p

. 2 0 0 7 ) ( ci t i n g Cranston v. Combs , 1 06 S.W. 3d 64 1, 64 4 ( Te nn . 2 00 3) ; Kendrick v

. Shoemak e , 90 S.W.3 d 566 , 570 (T e nn . 2 00 2) ; Blair , 77 S.W .3d at 150). The trial court f ound that there had bee n “a disturbingchang e i n ci rcumstanc es in the home of the mother and he r beha vior would dictate a

chang e of the custody

of the min o r ch i l d re n.” The chanc ellor also found that the children’ s exposure to Mother’s instability was “ disconce rting, t o s ay the least.” (TR p.73). Dr. Kennon r eporte d that Mother had de monstrated neg ative, err atic chang es in her be havior since the divorce . We ag ree with these conc lusions. W e find that Mother ’s disturbing a nd err atic beha

vior since the divorc e constit uted a materia l chang e in circumstances that affe cted the w ell being of the children in a

meaning ful way

.

I n F a the r ’ s m o t i o n t o m o d i f y t h e p ar e n t i n g p l an , h e a l l e g e d t h a t M o t h e r h a d e n g a g e d in inappropriate behavior an d fa i l ed to prope rly car e for the childre n. He spe cifica lly ref ere nced,

a mon g oth e r t

hin g s, the Au g us t 19 , 2 00 6 p art y a t Mo the r’ s ho us e , Mo the r’ s a lle g e d re la tio ns hip wi th-15-

a tee nag er, he r text m essag es conta ining a dult subject m atter, he r re cent ter mination from her job, and the f act that she left Connor at home a lone and he ca l l ed 911. I n sum, Fathe r conte nded that Mother’s unusual and irresponsible behavior constituted a mater ial chang e in circ umstances a nd that it w a s in the c hil dr e n’ s b e st i nte re st that he be d esi gnate d pr ima ry re sid e nti a l pa

re nt. On a pp e a l, Mother ar g ues that Father failed to pr ove a materia l c hang e in c ircumstance s beca use she r ebutted

eac h of the spec ific alleg ations that were listed in Father ’s petition by testimony

or otherw ise.

First, Mother points to her te stimony in which she de nied beingterminated f rom her job, but Mother also c laims that her employ ment situation was irrele vant t o the trial cour t’s analy sis. The school district’s superintende nt testified that Mother was forc ed to r esig n beca use of r eports that she display ed pornog raphy

at school and complaints that high school students w ere spending too much time at the nurse’ s station. We c onclude that this fa ct was proper ly considere d by the trial court a s an example of Mother ’s er ratic be havior since the divorce

. Although Mothe r cor

rec tly points out t hat there was no e vidence that she “te x t messag ed” inappropriate mater ial to a minor, a sixt een- y ear -old boy testified t hat Mother showe d him pictures of he r b re a sts on

he r c e ll p ho ne and

in p e rs on . M rs . A dams t e sti fi e d th a t Ma diso n bro ught a c e ll ph on e fr om Mo the r’ s ho me that c on ta ine d se ve ra l pic tur e s of so me on e ’s ba re bo tto m, and th e se pictures a ppear in the record before us. Other adults testified that Mother ha d shown them pictures

on her c ell phone of he r nude br easts. Althoug h Mother denie d eac h of these a lleg ations, the preponde ranc e of the evidenc e sug g ests that Mother had e ng ag ed in such inappr opriate be havior.

Next, Mot her c laims t h at she ef fec tively rebutted the alleg ation that she had a sexual

re la tio ns hip wi th a

te e na g e r. Th e tr ia l judg e me nti on e d Mr. Ta nn e r’ s tes tim on y to the c on tr a ry in h i s fi n d i n gs o f f

ac tan d co n cl u s i o n s o f l aw , s t at i n g:

Justi n T ann e r t e sti fi e d th a t he is 2 0. He te sti fi e d th a t w he n h e wa s 1 9 h e ha d s e x with [Mot her]. He was at the par ty in question. . . . He stay ed all nig ht. He said on that night he beg an a se x ual re lationship with [ Mother]. He said t h e d i rt y dancingwas done in front of

the childre n. Their relationship lasted from that night on f or about

sever al wee ks. He said the childre n wer e ther e sometimes when the y had sex. . . . He testified that on the phone [Mot her] wanted him to lie for her prior to his deposition. The trial judg e later

noted in its findings that Mother de nied havinga sex ual relationship with M r. T an n er , b u tt h e c o u rt d i d

n o t ex p l i ci t l y re s o l v e t h e c o n fl i ct i n g t es t i m o n y

. E v en as s u m i n g arguendo that Mother did not eng ag e in sexual relations with Mr. Tanne r, she does not deny that he and othe r y oungme n w e re a t he r h ome un til the e arl y ho ur s o f t he mor nin g in t he pr e se nc e of

he r t e n- y e a r- old daug hter a

nd five-y ear -old son.

Mother attempts to minimi ze the signific ance of the pa rty at her house by insisti ng that the da nc ingwa s n ot “ dir

ty ” and that sh e did

no t pe rs on a lly c on su me a lc oh ol o r i nv ite the te e na g e rs to he r h ou se . D r. Ke nn on

fo un d th a t Mo the r’ s “ imp uls ive de c isi on to a llo w a

‘p art y ’ a t he r ho me wi th te e na g e rs and

y oung e r m e n und e r t

he a g e of 21

. . . s ug g e sts a de g re e of imp uls ivi ty

and pr ob le ma tic modeling of

appropr iate re lational boundarie s fo r h er children.” We simi larly find that Mother’s-16-

decision to have a par

ty with teenag e males, w ho wer e close r in ag e to Mad i s o n t han to Mother, demonstrated poor

judgme nt and was pr operly considere d by the trial cour t in assessing Mothe r’s behavior since the divorc e.

Next, Mot her c laims that the trial court err ed in allowing testimony reg ardingfac ts other than the se ve n s pe c if

ic a lle g a tio ns in F a the r’ s mo tio n to mod if y th e pare nt in g pla

n. I n o the r w or ds
, Mo the r c on te nd s that F a the r w a s p ro hib ite d f ro m pr e se nti ngte sti mony re g ard ingthe un c le anli ne ss of her home, her marrie d boy friend, and her administering unpresc ribed a ntibioti cs to the childre n, be c a us e F a the r d id n ot i nc lud e the se a lle g a tio ns in his mot ion

. Mo the r doe s not ci te any a uth or ity for this argument except for “the Rules of Civil Procedur e.” T his Court rejecte d a similar ar g ument in Robertson v. May es , No. M2007-02532-COA- R3-J V, 2008 WL 2331030, at *5 (Te nn. Ct. App. W.S. June 3, 20 08 ), a s f

oll ow s:

Ne xt, Mo the r a

rgue s tha t her “ du e pr oc e ss ri g ht to h a ve tim e ly and a de qu a te notice [of the alleg ations ag ainst her]” wa s violated. Father’s o rig inal petition for custody alleg ed that he should be g rante d custody of t he children bec ause Mother was using dr ug s, leaving the childre n at home alone , failing to chang e their diapers, a nd neg lecting the childre n by failing to pr ovide them with a proper diet. Mother ar g ues that F a the r c ou ld n ot t

he n in tr od

uc e “ e vid e nc e of

a dd iti on a l a lle g a tio ns no t se t f or th i nt h e p e t i t i o n , ” s u c h a s e v i d e n c e a b o u th e r b o y f r i e n d ’ s c r i m i n a l r e c o r d

. . . . In Keisling v. Keisling
, 92 S.W .3d 374, 380 (Tenn. 2002), the Supreme Court held that a par en t’ s r ig h t to d

u e p r o c e s s w a s v io late d w h e n th e p le a d in g s d id n o t g ive her

no tic e that custody would be an issue in the case , and the tria l court cha ng ed custody afte r the hearing

. Howeve r, that is not the situation here. Mother clea rly knew that Father wa s seeking custody of the childre n. We find no merit in Mother’s ar g ument that sh e wa s una

wa re that th e c ourt wo uld

c on sid e r t

he sit uatio n invo lvi nghe r l ive -i n boy friend, which is r eleva nt to her fitness as a pare nt. .

. . I n fac t, one of the statutory fac tors to be consider ed in custody deter minations is “[t] he cha

rac ter a nd behavior of any other person who resides in or fre quents the home of a pare nt or car eg iver a

nd the person’ s interac tions with the child.” Tenn. Code Ann. § 36-6-106( a)( 9). Mother cites no authority

for the notion that a tr ial court ca n o n l y consider e ach of the statutory fac tors if the par ent pe titioni ng for c ustody addre ssed that fa ctor in his or her pe tition for custody

.
Id. at *5. As in Robertson , Mother knew that Father wa s seeking custody of the c hildren base d on an alleg ed mater ial chang e in circ umstances. Father’s petition to modi fy the par enting plan alleg ed that Mo the r h a d “ e ng a g e d in inappro pri ate be havio r i n th e pr e se nc e of the c hil dr e n[,] f

a ile d to pr op e rl y c are fo r the c hil dr e n, ” and “ e ng a g e d in

unus ua l and

ir re sp on sib le be havio r. ” Cle arl y , f a c ts reg ardingMother’s r elationship with Mr. Reams, her treatment of the children’ s medical ne eds, and the clea nliness of Mother’s home are rele vant to Father’s a lleg ations and the be st interest of the children. See Tenn. Code Ann. § 36- 6-106(a )(2) , (9) ( instructing tr ial courts to consider a par ent’s dispositi on to provide medica l car e and othe r nec essar y car e to the child, as we ll as the cha rac ter a nd be havio r o f a

ny pe rs on wh o f re qu e nts the pa

re nt’ s h ome ). Th is i ssu e is w ith ou t me ri t.-17-

Next, Mot her c ontends that “the r ecor d is void of an y proof” that the cha ng es in Mother’s circ umstances a ffe cted the c hildr en

. As previously stated, Dr. K ennon found that Mother had demonstrated e rratic behavior al cha ng es and state d, “He r admitted involvement with a mar ried man, h er i mp u l s i v e d ec i s i o nt o al l o w a ‘p ar t y ’ at h er h o m e wi t h t ee n age rs an d y o u n ger m en u n d er t h e a ge of 2 1
, i n addition to the rec ent unre solved conflict with her family cer tainly sug g est a de g ree of i mp u l s i v i t y

a n d p r o b l e m a t i c m o d e l i n g o f a p p r o p r i a t e r e l a t i o n a l b o u n d ar i e s f o r h e r c h i l dr e n

. ” In addition, Dr. Ke nnon noted Mother’ s unjustified animosity toward Mr s. Adams and f ound that Mother, “in de speration, [ had] attempted to manipulate the c hildren.” D r. K en n o n wa rned that manipulating the children a nd encour ag ing the m to eng age in inappr opriate be haviors “c an be emotionally

abusive” beca

use i t draws the c hildren into the ce nter of the pare nts’ conflict. Dr

. Kennon f ound that Mother had told Madison an ex ce s s ive amount of infor mation reg ardingthe custody case , “including details which we re not a ppropri ate to Madison’s a g e and de velopmental level.” H e said that ch i l d re n who are over burdene d are likely

to develop anxiety

and depr essive sy mptoma t o l o gy

. We find no merit in Mother’s asse rtion that there w as no evide nce that her behavior had an e ffe ct on the childre n.
Finally , Mother co n t ends t hat the doctr ine of unc lean ha nds should have pre vented F ather from see king r elief be cause “F ather was g uilty of the very actions of whic h he ac cused Mother ,” such as drinking alcohol, letting the chi l d re n s t ay up late, and living with Mrs. Adams bef ore the y marrie d. Mother cites one case in support of her unc lean ha nds argument, but it i n volved a life insurance company ’s suit to recove r on a note

. See Cont ’l Bankers Life Ins. Co. of the Sout h, In c.
v . Si mm ons , 561 S.W .2d 460, 465 (Tenn. Ct. App. 1977). “[I ]n Tenne ssee, the doc trine of ‘ unclea n hands’ doe s not ne cessa

rily repe l a petition r eg arding the welfa re of a child beca

use the we lfare of the child pre dominates over any offe nded dignity of the c ourt.” Bul ick v. Thom

pson , No. W2004- 00 81 6- CO A- R3- CV , 2 00 5 WL 12 35 02 , at *4 (Te nn . Ct. App . J an. 18 , 2 00 5) . A lth ou g h g e ne ra lly litigants found t o h av e u n cl ean ha nds will “be re pelled at the thr eshold of the c ourt,” Cont ’l Banke rs , 561 S.W .2d at 465, in proce eding s where the welf are of a child is conc erne d, the protec tion of the child is the foca l point. Bul ick
, 2005 WL 123502, at *4. “B iologica l pare nts are not r equire d to demonstrate they

are perf ect be fore they

can be g rante d custody of t heir c hildren.” Ray v. Ray , 8 3 S

. W

. 3 d

7 2 6
, 7 3 4 (T en n

. C t

. Ap p

. 2 0 0 1 ) ( ci t i n g Ri c ha rd v . R ic ha rd , No. M1999-02797-COA- R3- CV , 2 00 0 WL

67 92 33 , at *5 (T e nn . Ct. App . May 25 , 2 00 0) ; Rice v . Rice , 983 S.W .2d 680, 682-83 (Tenn. Ct. App. 1998)). Given the nature of these pr ocee dings, the trial court pr operly reje cted Mo the r’ s argume nt b a se d o n unc le an h and s.

2. The Chi ldr e n’ s Be stInt e r e st

After finding that a mater ial chang e in circ umstances ha s occur red, the trial court must then proce ed to the sec ond step in the ana ly sis and deter mine whether

the modification soug ht is in the child’s best i n t er es t , in light of the f actor s enumerated in Tenne ssee Code A nnotated sec tion 36-6-106. In r eM. J. H. , 196 S.W .3d 731, 745 (Tenn. Ct. App. 2005). On appe al, Mother a rg ues that the trial cour

t erre d in concluding that it would be in the children’ s best interest for Father to be primary residential pa

rent. Spec ifically , Mother cla ims that the trial court “ cher ry -picke d fac tors and-18-

sug g estions of the expert testimony an d re p ort, knew a nd disreg arde d the eleve n y ear old’s pref ere nce, a nd ruled inconsistently

with the best interest a

naly sis.”

M o ther c laims that this case is compar able to Burden v. Bu rden
, 2 5 0 S. W.3d 899, 917 (T e nn . Ct . App . 2 00 7) , w he re the Court of App eal s stat e d th a t a tr ia l c ourt

ha d “ e ng a g e d in unjustified judicial ‘che rry -picking ’ of the e x pert re port . . . with no valid evidentiary basis for doing so.” In that case , the trial judg e stated t h at h e simply did not like the results of the expert’s evaluation, and the trial cour t’s final opinion distorted the repor t’s contents to rea ch the r esult the judge wanted. Id. a t9 0 8

. H a v i n g r e v i e w e d D r

. K e n n o n ’ s e n t i r e r e p o rt an d h i s l e n g t h y t e s t i m o n y,
we c onclude that it is Mother who ha s “che rry -picke d” Dr

. Ke nnon’s re port in this case. At ora l argument on appea l, Mother’s attorney stated t hat t he only instance where Dr. Ke nnon expressed a

c on c e rn re g ard ing a neg a tiv e imp a c t on the c hil dr e n w a s w he n h e wr ote le tte rs e xpre ssi nghis

conce rn that F ather

was isolating the childre n from M o t h er when she had no one to super vise her visitation. How ev er , she fa ils to not e that in those same le tters, Dr. K ennon stated that he was “sensitive to [Father ]’s concer ns reg ardingthe safe ty

of the c hild re n , ” an d h e re commended that Mother’s visitation conti n u e t o be super vised. Fur

thermore , we ne ed not list here Dr . Kennon’ s
many c on c e rn s, as stat e d in

his re po rt , r e pe a te d in

his te sti mony , a

nd pr e vio us ly

dis c us se d in

thi s opinion, reg ardingMother’s ne g ative and e rratic behavior and its eff

ects on the c hildren.

Ne xt, Mo the r c la im s th at th e tr ia l c ourt sh ou ld h a ve a do pte d th e re su lts of the B ri c kli n Perce ptual Scales test that was a dminist ere d to Madison and Connor, which f ound that both children

con s id e r e d M o th e r to b e th e ir p ar e n t o f c h o ic e

. D r

. K e n n o n te s ti f ie d th a t th e te s t w a s “a w ay of loo kin g a t [a

c hil d’ s] pr e fe re nc e ” a s to c us tod y , a nd he sa id “ wh e n th is t e st w a s b e ingstu die d, it ag ree d with the C ourt’s findings 97% of the t ime.” B ased on the se statements, Mother contends that the trial cour

t abused its discretion in not desig nating Mother primar y residential pa

rent. How ever , Dr. Ke nnon di d n o t s p ecifically rec ommend that Mother or F ather be name d primary

residential pare nt. Essentially , Mother asks this Court to hold that a trial c ourt must name the child’s “ pare nt of choice,” as demonstrated by the Bricklin Perce ptual Scales, as the primary residential pa

rent. A tr ia l c ourt may re

je c t an e xpe rt ’s te sti mony if it fi nd s th a t it is i nc on sis te nt w iththe fa c ts i n th e c a se
o r o therwise unr easona

ble. Burden
, 2 5 0 S

. W

. 3 d at 9 1 5 (c i t i n g Cocke County Bd. of Highway Comm'rs v. Newport Uti l. Bd. , 690 S.W .2d 231, 235 (Tenn. 1985) ). W e s ee no rea son why the

re su lts of a sin g le re po rt sh ou ld be g ive n an y mor e de fe re nc e . M or e ov e r, we have re pe a te dly he ld that a child ’s p refere nce is only one of ma

ny fac tors to be g iven consider ation in a custody deter mination, and it is not controlling on the court even when the c hild is over ag e twelve

. In r e NR G , No. E2006-01732- COA-R3-CV, 2007 W L 1 1 5 9 4 7 5 , at *3 (Te nn. Ct. App. Apr. 19, 2007) (c i t i n g W atson v. W

atson , 1 96 S.W. 3d

69 5 ( Te nn . Ct. App . 2 00 5) ; Hoalcraft v. Smithson , 19 S.W .3d 8 2 2 (Tenn. Ct. App. 1999), W all v . W all
, 9 0 7 S

. W

. 2 d 8 3 4 ( T e n n

. C t

. A p p

. 1 9 9 8 ) )

. T h i s i s s u e is without merit.Th e f ol l ow i ng f act ors s ho ul d be con s i dere d, w here appl i cabl e: 4

( 1) The l ove, a f f ec t i on a nd e m ot i onal t i es e xi s t i ng be t w ee n t he par ent s or c ar egi ver s a nd t he chi l d; ( 2) Th e di s po s i t i on of t he pare nt s o r care gi vers t o provi de t he chi l d w i t h food, cl ot hi ng , m edi cal ca r e, ed u cat i o n an d other n ecessar y care and t h e d eg ree t o w h i ch a p aren t o r careg i v er has be en t h e p ri m ary careg i v er; ( 3) The i m por t ance o f co nt i nui t y i n t he chi l d’ s l i f e and t he l engt h of t i m e t he chi l d ha s l i ved i n a sta b le , sa tisfa c to ry e n v iro n m e n t;

. . . (4 ) T h e stab i l i t y o f t h e fa m i l y u n i t o f t h e p are n t s o r ca reg i v ers; (5 ) T h e m en t al an d p h y si ca l h ea l t h o f t h e p are n t s o r ca reg i v ers; ( 6) The hom e, s chool a nd c om m uni t y r ec or d of t he chi l d; (7)(A ) T h e reason ab l e p refer en ce o f t h e ch i l d
, i f t w el v e (12 ) years of age or o l d er; ( B ) T he court m ay hear t he pref er ence of a youn ger chi l d on r equest. T h e pr ef er ences of ol der chi l dr en s houl d nor m al l y be gi ven gr ea t er w ei ght t han t hos e of younge r c hi l dr en; ( 8) E vi denc e of

phys i ca l or em ot i onal abus e t o t he c hi l d, t o t he ot her pa r ent or t o a ny ot her pe r s on;

. . . ( 9) The c har ac t er a nd be havi or of a ny ot her pe r s on w ho r es i des i n or f r eque nt s t he hom e of

a pa r ent

or c ar egi ver a nd t he per s on' s i nt er ac t i ons w i t h t he chi l d; a nd (1 0 ) E ac h p are n t o r ca reg i v er's p ast an d p o t en t i al fo r fu t u re p erfo rm an ce o f p are n t i n g resp o n si b i l i t i es, i ncl udi ng t he w i l l i ngnes s and abi l i t y of ea ch of t he pa r ent s a nd c ar egi ver s t o f ac i l i t at e and enc our age

a c l o se a n d co n t i n u i n g p are n t -ch i l d relati o n sh i p b etw ee n t h e c h i l d an d b o t h o f t h e c h i l d ' s p are n t s,

cons i s t ent w i t h t he bes t i nt er es t of t he chi l d.

T en n

. C o d e A n n

. § 3 6 -6-1 0 6 (a) (Su p p

. 20 0 8 ).

-19- Finally , Mother conte nds that eac h of the statutory best interest fa ctors we igh in f avor of her being named pr imary

residential pa

rent. After

revie wing eac h of the fa ctors, we find that the 4 evidenc e over

whelming ly

sup ports the trial cour

t’s decision to name F ather primary residential pare nt. Although it was undisputed that both par ent s l o v e t h e children, D r. Ke nnon found that Mo the r f os te rs a de g re e of

de pe nd e nc y

wi th C on no r s o th a t he had be c ome hig hly e mot ion a lly depende nt on her. Mother ignor ed Dr . Kennon’ s rec ommendation to quit sl eepingwith C o n n or beca use she sa id she had rea d about co-e d sleeping in a pare nting mag azine. Mrs. Stafford te stified that sh e ha d o bs e rv e d a

ma jor im prove me nt i n Co nn or ’s c on fi de nc e sin c e he we nt t o li ve wi th Father. Ms. Tony a Staffor d simil arly testified that Connor used to be very shy and timid, but he had “opene d up” since living with Father a nd was “ a totally

differ ent child.”

Both pa rents we re able to pr ovide the childre n with food and c lothing, but seve ral witnesse s testified about hyg ienic conc erns at Mother’s home. The phy sician’s a ssistant who reg ularly treated the childre n testified about conc erns she had with Mother providing unpresc ribed medic ations to the children. Reg ardingthe childre n’s ed u ca t i o n , Madison testified that she wa s curr ently on the “B Honor Roll,” wher e she ha d previously been on the “A Honor Roll.” Howeve r, Mother te stified that she intended to tra

nsfer the children to a differ ent school if she was g rante d custody , and Dr . Kennon testified that it would be disrupt i v e i f t he childre n wer e take n out of Br adfor d. We rec og nize the importance of continui ty

in the children’ s life and their need f or a “ stable, satisfac tory

environment,” See Tenn. Code Ann. § 36-6-106( a)( 3), but due to Mother’s erratic behavior , she wa s not providing a stable, satisfactory

environment for

the children, and aga in, she intended to move the children a way from their c ommunity , their school, and their gra ndpare nts if she was g rante d custody . The c hildren-20-

had bee n living with F ather for over a y ear at the time of the f

inal hear ing, a

nd Dr. Ke nnon repor

ted that Fa t her a

nd Mrs. Adams both possessed a ppropriate pare nting skills. Dr. Ke nnon noted that Father wa s active in the c hildr en ’s s p o rting activities and e x trac urricula r ac tiviti es, while Mother te sti fi e d th a t sh e ra

re ly a tte nd e d s uc h a c tiv iti e s.

Mo the r a g a in p oin ts t o th e fa c t th a t both c hil dr e n d e mon str a te d th e ir pr e fe re nc e to l ive wi th her throug h their psy cholog ical testing , and Madison testified t h at she liked living w ith Mother. Madison was e leven y ear s old at the time of trial, and Connor was seven. The stated pref ere nce of a child is one of the statutory fac tors that can be considere d by a trial c ourt when de termining what i s in the best interest of the child. Mulke y v. M ulkey
, N o

. E 2 0 0 4

- 0 0 5 9 0

- C O A

- R 3

- C V , 2 0 0 4 WL 2412610, at *5 (Tenn. Ct. App. Oct. 28, 2004). Howe ver, the court is not require d to consider the pref ere nce of a child y oung er tha n twelve, a

nd courts ar e instructed to g ive “g reater we ight” to the pref ere nces of

older c hildren. Tenn. Code Ann. § 36-6-106( a)( 7) (Supp. 2008). “T h e st atute’s d i ff er en t i ati on based on the ag e of the child ref lects a le g islative judgme nt that the pref ere nces of y oung er c hildren ar e less reliable as g uides to the ir best interest.” Cos tle y v . Be nja min , No. M2004- 00375-COA-R3-CV, 2005 W L 1 9 5 0 1 14, at *16 (Te nn. Ct. App. Aug . 12, 2005). “Children c an easily decide they

would rathe r live with the more lenient or g ener ous pare nt rather than the one w ho just refused to buy the newe st must-have item or who set rules the child did not a g ree with.” Id. In this case, the c hildren’s pre fer ence does not lead us to conc lude that it is in t heir be st interest to live with Mother.

Dr . K e nn on

re po rt e d th a t Mo the r’ s ma nipu latio n o f t

he c hil dr e n c ou ld b e e mot ion a lly abusive. The only

alleg ation of phy sical abuse in this case ca me from the te stimony

of Mother a

nd Madison, in which they

descr ibed an incident where Father he ld Madison upside down and shook her a fter she g ot gum in his hair. The tria l court appa rently did not believe this testimony , as it found “no indication of c hild abuse on t h e part of [Father ].” Giving due defe renc e to the trial c ourt’s assessment of c redibility , we f ind no error

in the court’s c onclusion.

The trial court also found t hat “the people in the home of [Father ] are of g ood char acte r and behavior .” The evidenc e supports this conclusion as well. As for the pare nts’ ability to fac ilitate and

e nc oura g e a

c los e and c on tin uin g pa re nt- c hil d re la tio ns hip be tw e e n the c hil d an d the oth e r p a re nt, D r

. K e n n o n f

o u n d th a t M o th e r h a d c o mm u n ic a te d in a

p p r o p r iate an d e xc e s s iv e a mo u n ts of information to Ma dison a bout Mothe r’s conflict with F ather

. He noted that Mother’s manipulative behavior could dra

w the childre n into the middle of the conflict. Dr . Kenn o n al s o found that Mo the r’ s unr e so lve d a

nd un justif ie d a ng e r t ow ard

Mr s. Ad a ms c ou ld “ ob vio us ly pr omo te fa

mil y dis ha rm on y and ne g a tiv e ly imp a c t th e c hil dr e n’ s p e rc e pti on .” F a the r a c kn ow le dg e d h is d if fi c ult y in de aling with Mothe r, but he testified that he had be en attendingcounseling and he intende d to do

ever y thing he could to fac ilitate a good relationship between the c hildren and Mother . Father ha d

a llo we d th e c hil dr e n to ma int a in a c los e , c on tin uin g re la tio ns hip wi th M oth e r’ s p are nts and sib lin g s.

I n s um, we fi nd

tha t th e we ig ht o f t

he e vid e nc e su

pp or ts the tr ia l c ourt ’s c on c lus ion that it is i n th e c hil dr e n’ s b e st i nte re st f or F a the r t o b e name d p ri mary re sid e nti a l pa

re nt.-21- B. Att orney’s fe es

Mother contends that the trial court err ed in awar ding $16,214.05 in attorney ’s fe es to Father be c a us e he did no t show he wa s una ble to p ay his a tto rn e y ’s fe e s. Mo the r c la ims that F a the r s ho uld have be en orde red to pa

y her attorn ey ’s fe es i n the amount of $19,447.67. How ever , she cites no authority for he r ar g ument.

Te nn e sse e Cod e Anno ta te d s e c tio n 3 6- 5- 10 3 p ro vid e s, in r e le va nt p art :
(c) T h e p l ai ntiff spouse may rec over f rom the def

endant spouse, a

nd the spouse or other pe rson to whom the custody of the c hild, or children, is aw arde d may rec over from the other

spouse re asonable attorney fee s incurre d . . . in reg ard to a ny suit or action conce rn i n g the adjudication of the custody or the c hang e of c ustody of any child, or childre n, of the pa rties, both upon the orig inal divorce hear ing a nd at any subsequent hea

ring , which fe es may

be fixed and allowe d by

the cour t, before whom

su c h a c tio n o r p ro c e e din g is p e nd ing , in the dis c re tio n o f s uc h c ourt

.

T h e s t a tu t e v e s t s d i s c r e t i o n ar y a u t h o r i t y i nt h e c o u rtt o aw ar d

a t t o r n e y ’ s f e e s i nc u s t o dy

c a s e s. Shofn er v. Shofner
, 181 S.W .3d 703, 719 (Tenn. Ct. App. 2004). T he Te nnessee Supreme Court has explained that “[i] n case s involving the c ustody and support of c hildren, . .

. it has l ong been the rule in this State that counsel fe es incurr ed on beha lf of minors may be recove red w hen shown to be

rea sonable a

nd appropr iate.” Ta

y lor v . Fe ze ll
, 1 5 8 S

. W

. 3 d

3 5 2
, 3 6 0 (T en n

. 2 0 0 5 ) ( ci t i n g Deas v

. Deas , 774 S.W .2d 167, 169 (Tenn. 1989)). There is no absolute right t o such fees, but “their a war d in custody

and support proc eeding s is familia r an d al m o st commonplace.” Id. “In awa rding

a t t o r n e y’ s f e e s p u r s u an tt o s e c t i o n3 6

- 5

- 1 0 3 ( c )
, t h e t r i a l c o u rtm ay c o n s i d e r p r o o f o f i n a b i l i t y t o p a y, but such consider ation will not be controlling.” Id. (c i t i n g S h e r r o d v . W ix , 8 4 9 S

. W.2d 780, 785 (T e nn . Ct . App . 1 99 2) ); see also Gaddy v. Gaddy , 861 S.W .2d 236, 241 (Tenn. Ct. App. 1992) (explaining that proof of i nability to pay is not a prerequisite to an aw ard of fee s under se ction 36-5- 103(c) ). “The purpose of these awa rds is to protect the childre n’s, not the custodial par ent’s, leg al

r e me d ie s .” S

herrod , 849 S.W .2d at 785. We revie w the trial c ourt’s dec ision to award suc h fee s using the less stringe nt “abuse of discre tion” standard of revie w. Richardson v. Spanos , 189 S.W .3d 72 0, 72 9 ( Te nn . Ct . App . 2 00 5) . In th is c a se , w e fi nd no a bu se of the tr ia l c ourt ’s dis c re tio n in

awa rd ingF a the r h is atto rn e y ’s fe e s.

Father ha s reque sted an a war d of his attorney ’s fe es on ap p ea l

. “T h e dete rmination of whether t o aw ar d att orney ’s fe es for an appe al is within our discretion.” Har ris v . Ha rri s , 83 S.W .3d 137, 141 (Tenn. Ct. App. 2001) ( citing T enn. C ode Ann. § 36- 5-103). In deter mining whether an aw ard f

or attorne y ’s fe es is war

rante d, we s h o uld consider, among othe r fa ctors, the

a bil ity of the re qu e sti ngpa

rt y to p ay his or he r o wn a tto rn e y ’s fe e s, the re qu e sti ngpa rt y ’s su c c e ss on appea l, and whethe r the requesting party has bee n acting

in good f aith. Shofn er , 181 S.W .3d at 71 9. Con sid e ri ngF a the r’ s su c c e ss on e ve ry iss ue on a pp e a l, the we a kn e ss of Mo the r’ s a rgume nts

on a pp e a l, a nd the g oo d f

a ithde mon str a te d b y

F a the r thr ou g ho ut the se pr oc e e din g s, we ho ld t hat hi s-22-

reque st for attorne y ’s fee s is pr oper and rema nd the cause to the trial court to se t a rea sonable fe e for the se rv ic e s r e nd e re d b y

c ouns e l on

a pp e a l.

IV. C ONCL US I ON

For the aforementioned rea sons, we affirm the decision of the chanc ery court a nd rema nd for further proce eding s. Costs of this a ppeal are taxed to the appellant, Tammy Renee Adams, and he r
s u r e t y, f o r w h i c h e x e c u t i o nm ay i s s u e i f n e c e s s a r y.

___________________________________ AL AN E. HI GH ERS , P. J. , W .S.