IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 15, 2005 Session

BRETT W. WOODROOF v. NATHAN E. FISHER, ET AL.

 Appeal from the Chancery Court for Sullivan County

No. 29888(M) John S. McLellan, III, Chancellor

No. E2004-00303-COA-R3-CV - FILED MARCH 28, 2005

This appeal involves a dispute between the biological father, Brett W. Woodroof, who filed a

petition to establish paternity of the nine year old child, Taylor Leigh Fisher, and the stepfather,

Nathan E. Fisher, with whom the child has lived since she was two years old. The trial court

determined that Mr. Woodroof was the natural father and awarded him visitation rights, but did not

award him custody. A review of the record indicates that Mr. Woodroof asked for custody initially

in his petition to determine parentage, but subsequently withdrew his request in his amended

petition, and repeatedly advised the court throughout the lengthy court proceedings that spanned

sixteen months that he sought only visitation with the child, and not custody. Mr. Woodroof

requested custody only at the end of the trial process, after the testimony of the medical experts and

other persons had been presented, and after numerous assertions in court that he was not presently

seeking custody. We hold that his request for custody came too late and therefore we affirm the

judgment of the trial court and remand for further action consistent with this opinion. 

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

Modified; Case Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J. and

CHARLES D. SUSANO, JR., J., joined.

Thomas F. Bloom, Nashville, Tennessee, for the Appellant, Brett W. Woodroof.

Mark D. Harris, Kingsport, Tennessee, and Phillip Larry Boyd, Rogersville, Tennessee, for the

Appellee, Nathan E. Fisher.

Paul R. Wohlford, Bristol, Tennessee, for Intervening Petitioners, Robert R. Barnett and Carolyn

Kay Barnett. 

Polly A. Peterson, Johnson City, Tennessee, guardian ad litem for Taylor Leigh Fisher.
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OPINION

I. Factual and Procedural Background

Brett W. Woodroof initiated this cause of action on July 9, 1999 by filing a petition to

establish parentage of Taylor Leigh Fisher (hereinafter “Taylor” or “Child”), born February 17, 1996.

According to the petition, Mr. Woodroof and the child’s mother, Kimberly Barnett Fisher

(“Mother”), met and dated in the mid-1980's. Mr. Woodroof joined the military and after his two

years of service, he and KimberlyFisherrenewed their friendship. At that time, Kimberly Fisher was

married to Nathan Fisher, but she told Mr. Woodroof that she and her husband were essentially

separated and she had been dating someone else for a substantial period of time. Mr. Woodroof and

KimberlyFisher’s relationship continued and during Memorial Day weekend in 1995, they engaged

in unprotected sexual intercourse. Taylor Leigh Fisher was born approximately nine months later.

Mr. Woodroof was not told of her birth until September or October of 1996 when in a telephone

conversation, Mother told him she had given birth to a baby girl but she gave him an incorrect date

for the birth of the child. Mr. Woodroof and Mother continued their relationship and spent the New

Year’s weekend together in 1997. Mr. Woodroof first saw Child in February of 1997 and was struck

by Child’s strong physical resemblance to himself. In the meantime, Mother and Nathan Fisher

divorced in April of 1997 and Mother was awarded custody of Child subject to Nathan Fisher’s

visitation rights. Mother sent Mr. Woodroof a picture of Child in December of 1997, and again he

noticed a “strong physical resemblance” between Taylor and himself. Thereafter, in 1998, Mother

and Mr. Woodroof continued their telephone relationship and on several occasions, he confronted

her about Child’s parentage and she denied that he was Child’s father.

On August 26, 1998, Mother committed suicide. Mr. Woodroof was a pallbearer at the

funeral. While at the funeral home, Mr. Woodroof saw Child and became convinced that he was the

father. After a short transition period when Child was apparently staying primarilywith her maternal

grandparents, she came to live with Mr. Fisher and his new wife, Tonya Fisher, in October of 1998.

Taylor has continually lived with the Fishers since that time.

As noted above, Mr. Woodroof filed a petition to establish paternity of Taylor on July 9,

1999, requesting as follows: 

[T]he Plaintiff demands that the Court order the proper parties to

undergo genetic testing pursuant to T.C.A. § 24-7-112; that upon a

conclusive finding from such testing, the Court enter an Order

declaring the Plaintiff to be the natural father of the child, Taylor

Leigh Fisher; that the Plaintiff, upon such findings and Order be

granted physical custody of the child and all rights, privileges and

responsibilities of a natural father; that the child’s name be changed

to Taylor Leigh Woodroof, and that the Plaintiff be granted such

other, further and general relief which the Court finds appropriate.
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On August 21, 2001, the trial court entered an order appointing a guardian ad litem to represent the

best interests of the Child. On August 22, 2001, the maternal grandparents, Robert R. Barnett and

Carolyn Kay Barnett (“Grandparents”), filed a petition to intervene requesting custody of Taylor. 

On April 15, 2002, Mr. Woodroof filed a motion to amend his petition to establish parentage,

stating in relevant part as follows:

For grounds in support of this Motion to Amend, the Plaintiff would

show that his experts, Dr. Bernet and Dr. Lanthorn, have advised

Plaintiff that it would not be appropriate for him to have full physical

custody of Taylor Leigh Fisher at this time, and that he should only

be granted visitation rights with said child at this time. . . Because of

the opinions of Dr. Bernet and Dr. Lanthorn, Plaintiff seeks to amend

his prayer for relief in his Complaint to Establish Parentage which

was filed on July 9, 1999 in order to seek appropriate parental access

with Taylor Leigh Fisher, including only visitation rights with the

child at this time and custody of the child in the future. [emphasis

added]

Two sets of hearings took place before the trial court. The first began on August 14, 2002, and

continued on August 15, 2002, October 9, 2002, and December 11, 2002. Among the witnesses to

testify were two psychiatrists, a clinical psychologist and a psychotherapist, all of whom had

evaluated the Child. Although the experts were not in complete accord regarding their diagnoses,

they all agreed that the Child suffers from very serious emotional and psychological problems.

Evidence was presented that she has been diagnosed with Type I bipolar disorder by at least three

psychiatrists. 

The record contains a large amount of testimony regarding Taylor’s behavioral symptoms,

all of which need not be detailed in this opinion; but an example is provided by Dr. John Burke

Robertson, Jr., Taylor’s treating psychiatrist, who described what happened when she started

kindergarten:

A: She’s had her ups and downs. She initially regressed severely with

the beginning of school. It’s kind of–the situation was such that she

had maximal support and nobody was kind of bothering things, and

then all of a sudden we put her into another environment that she was

expected to perform at a level of another kindergartner, and she just

couldn’t do it, and she decompensated horribly at that time.

Q: Just let me stop you a second.

A: Sure.
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Q: Could you explain to the Court, and to us, what decompensation

is and what it means?

A: Sure. For Taylor’s case, or anybody’s case.

Q: Right.

A: Decompensation basically means a worsening of the psychiatric

symptoms of behavioral disturbances, emotional symptoms that a

person would have. And we usually reserve the word decompensate,

meaning that it’s pretty severe, as opposed to they had a small

sDeetbcoacmkp, eonr sthateereuswuasl laysmligeahnt swtohrisnegnsinhgavoef sgyomnep tboamcks.to a severe state,

maybe back to baseline, or even worse than baseline, before they were

on medication.

***

Q: And then after the decompensation, how would you characterize

her psychotic condition?

A: Well, are you talking about during the decompensation?

Q: Yes, sir.

A: I mean, we–yeah. I mean, she blacked–during that time, she

blacked teachers’ eyes, smearing feces, scratching herself, pulling her

hair out, biting herself, and biting peers. And, you know, of course

they just could not manage her. I mean, the school system had to get

involved, and they pulled her out. And we tried some home

schooling, and we tried some things with medication, and she

continued to do very poorly during that time, and eventually was

psychiatrically hospitalized in November [of 2001].

On September 18, 2002, the Grandparents filed a “proposal for contact” between the Child

and Mr. Woodroof, stating that “[t]his proposal has been generated by, and approved by the

counselor, Laura Arnfield. . . and essentially tracks her recommendations.” On September 20, 2002,

Mr. Fisher filed a proposal for contact with Mr. Woodroof, which concurred in and adopted the

Grandparents’ proposal.

The trial court entered an order on February 21, 2003, establishing parentage and setting forth

a visitation schedule for Mr. Woodroof. Based on DNA test results, the trial court declared Mr.

Woodroof to be the biological father and established a schedule of gradually increasing visitation

as follows in relevant part:
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[T]he Plaintiff shall be granted visitation with Taylor Leigh Fisher in

accordance with the Proposal for Contact submitted to this court by

the [Grandparents], which. . .was generated by and approved by Laura

Arnfield, Taylor Leigh Fisher’s therapist. . .however, paragraph 2 of

said Proposal for Contact is hereby modified so that Taylor Leigh

Fisher will not start to be advised of the existence of Plaintiff until at

least thirty (30) days after the birth of Nathan and Tonya Fisher’s

upcoming child, whatever date that is, with the timing to be in the

sole discretion of Laura Arnfield. During the interim period between

now and the time that Taylor Leigh Fisher is introduced to Plaintiff

as her biological father, the Plaintiff and Nathan and Tonya Fisher

shall meet with Laura Arnfield and start the process of learning how

to handle things, how to discuss things, and how to be on the same

page, so to speak, with regard to Plaintiff’s introduction to and

upcoming visitations with Taylor Leigh Fisher, and, 

IT IS FURTHER ORDERED, that the Plaintiff’s contact

schedule based on said Proposal for Contact (as modified) at this time

shall be as follows:

(a) That there will be no change of custody from the

Defendant [sic], Nathan Fisher.

(b) That the introduction of the Plaintiff to the minor child as

her biological father shall not start until at least thirty (30) days after

the birth of Nathan and Tonya Fisher’s upcoming child with the

timing to be in the sole discretion of Laura Arnfield;

(c) That Laura Arnfield, and. . .Nathan Fisher, and his wife,

Tonya Fisher, shall agree upon the presentation of the existence of the

Plaintiff to the minor child.

(d) That there shall be a minimum of a six (6) week period of

assessment and evaluation between each step of this proposal to

determine how the minor child is adapting to each step.

(e) That step two shall be a time where the Plaintiff sends

pictures, letters, telephone calls, e-mails, etc., to the minor child.

During this time there will be a meeting with the Plaintiff and [Mr.

Fisher] together to help the adults involved to be able to present a

more unified front for the minor child. 

(f) That step three shall be a short supervised visitation at the office

of Laura Arnfield, lasting 1-2 hours on a weekly basis, or as

determined by Ms. Arnfield. Before this step could occur, the

Plaintiff would have to have met with his therapist, and the therapist

and Ms. Arnfield would have communicated to insure continuity.

This visitation would not take place at school, because the minor

child needs to be able to function in school at a much higher level

before any additional stress is added. 
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(g) That step four shall be longer weekly visits up to 4 hours

still supervised by someone with whom the minor child is

comfortable. This could occur at the babysitters’ home or at the

Defendant’s home, with a family friend available. In addition, there

should be a weekly phone call from the Plaintiff to the minor child.

(h) That step five shall be a short 2-4 hour unsupervised visit

with the Plaintiff taking the minor child to places she is comfortable

and familiar within the Tri-City, Tennessee, area.

(i) That step six shall be longer, unsupervised visits, 4-6

hours, still at places familiar to the minor child. During these visits,

a meal would be shared between the Plaintiff and the minor child. 

(j) That step seven shall be to go to 6-8 hour long visitations

with two meals, occurring still in the Tri-City area. 

(k) That steps two through four shall occur on a weekly basis

for six weeks each. The six weeks will be consecutive not cumulative.

(l) That the Plaintiff; the Defendant, Nathan Fisher, and his

wife, Tonya Fisher; the [Grandparents]; the minor child’s school; the

minor child’s babysitter; the minor child; and Dr. Robertson will

provide communication to Ms. Arnfield on the minor child and her

progress. It is important that Ms. Arnfield assess the minor child’s

functioning to see if a move to the next level of visitation is possible,

or whether the minor child has regressed and a move needs to be

made backwards to a previous step. 

 ** *

(n) That if severe regression or decompensation occurs, steps

four through six should occur on a three week basis with step seven

to go to a once a month status in addition to moving backward to the

previous step.

(o) That Ms. Arnfield shall have sole discretion, as between

the parties, in determining whether the minor child can move to the

next proposed step, or whether there should be regression in the steps

by reason of her level of functioning. 

(p) That Dr. Robertson will be informed of every step and the

reaction thereto; he will also monitor the minor child’s situation as a

treating physician. He alone shall have medical decision-making in

this case. 

 ** *

IT IS FURTHER ORDERED, that all parties shall follow Ms.

Arnfield’s recommendations, and if a party disagrees with Ms.

Arnfield’s recommendations, then a petition should be filed before

this court, and this court will consider any of the concerns of any

party in that regard. 
Mr. Fisher testified that his salary increased from $91,000 to $155,000 per year as a result of the change in 1

employment. Further, this increase allowed Mrs. Fisher to remain at home and take care of Taylor, which Ms. Arnfield

testified was beneficial to her. 

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The trial court named Nathan and Tonya Fisher as the residential parents of the Child. The court

reserved several issues in the case, including method of payment of child support, Mr. Woodroof’s

request for a downward deviation of child support, and attorney fees and court costs. 

This already difficult case became even more complicated when Mr. Fisher accepted new

employment in March of 2003, requiring the Fisher family to move to Columbus, Ohio. Mr. Fisher

apparently stayed in an apartment in Columbus until the end of Taylor’s school year, when the family

relocated. Laura Arnfield, Taylor’s therapist, testified that due to the pending move, she proposed

speeding up the process of telling Taylor about her biological father, which was done. Taylor

learned of Mr. Woodroof’s existence on or about April 18, 2003.

On April 29, 2003, Mr. Woodroof filed a petition in opposition to the move, requesting a

restraining order prohibiting Mr. Fisher from removing Taylor from Kingsport. The petition further

requested that Mr. Woodroof “be declared as having legal custody of his daughter,” and as follows:

That this Court’s order of visitation in the state of Tennessee by the

plaintiff be accelerated and that upon conclusion of the visitation

schedule, that the Court review the issue as to whether or not the

plaintiff should be declared the primary residential parent of his

daughter and allow him to take her to his home in Nashville,

Tennessee under whatever safeguards for her care, upbringing and

necessary treatment the Court deems necessary. [Emphasis added]

On June 30, 2003, apparently shortly before the move to Columbus, a single face-to-face

meeting took place between Mr. Woodroof and Taylor, with Ms. Arnfield present. 

On July 30, 2003, Mr. Woodroof filed a motion requesting “that the court amend its Order

of Parentage entered in this cause on February 21, 2003, to authorize Plaintiff’s experts to reevaluate

Taylor Leigh Fisher within the next 12 months for purpose of determining when it would be

appropriate for Plaintiff to be awarded sole custody of his child.” 

On December 8 and 9, 2003, a hearing was held on Mr. Woodroof’s motions and on the

remaining issues that had been reserved in the court’s prior order. In its memorandum opinion

delivered at close of proof and incorporated into its final judgment, the trial court found that the

relocation to Columbus was for a reasonable purpose, did not pose a risk of serious harm to the 1

Child, and was not done with vindictive motive. The court dismissed Mr. Woodroof’s motion to

have Taylor reevaluated by his experts as “prematurely filed,” stating: 
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I find that based on Ms. Arnfield’s testimony that the motion is not in

the best interest of the child and is probably harmful to the child. I

find it is counterproductive to the relationship between the parties

necessary to allow a reasonable environment that would assist Taylor

in developing the trust of the Plaintiff required to progress to a

meaningful time-sharing arrangement. . .Now, by this ruling I’m not

saying that there will not be an appropriate time in the future based

upon the relationship developing and the trust developing between the

biological father and this child that this motion might be appropriate,

but based on the record I have today I find it is premature and I’ve

said it is dismissed. 

Mr. Woodroof appeals, raising the sole issue of whetherthe trial court erred in failing to grant

him custody of his biological child. Mr. Fisher, the Grandparents and the guardian ad litem have

filed separate briefs, each arguing that the judgment of the trial court should be affirmed. 

II. Standard of Review

In this non-jury case, our review is de novo upon the record of the proceedings below; but

the record comes to us with a presumption of correctness as to the trial court's factual determinations

which we must honor unless the evidence preponderates against those findings. Tenn. R. App. P.

13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court's conclusions of law, however, are

accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996);

Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

III. Analysis

In determining whether the issue of custody was properly before the trial court, a review of

the statements made to the court by counsel for the parties is helpful. We begin by noting that Mr.

Woodroof’s amended petition specifically requested “onlyvisitation rights with the child at this time

and custody of the child in the future.” At the beginning of the hearing, on the first day, counsel for

Mr. Fisherstated to the court, without contradiction, “this isn’t a custody case.” The same day, Mr.

Woodroof’s own attorney asserted to the court, “custody’s not even an issue right now. We’re

talking about the limited visitation period with the child.” Mr. Woodroof himself testified as

follows:

Q: Okay. Please explain to the Court what parental access you’re

seeking at this time with regard to Taylor Leigh Fisher.

A: I am requesting a graduated visitation that is being recommended

by a professional that I’ve asked to look into this matter.
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On October 9, 2002, the third day of the hearing, nearthe end of the day’s testimony and after

the medical psychiatric testimony had been heard, Mr. Woodroof’s counsel reiterated that “this isn’t

a custody case at this point. We’re asking for visitation.” The trial court stated that “as I understand

it, we’re just dealing with timesharing and not with custody.” 

On December 11, 2002, after the close of proof as regards the initial set of hearings on the

petition to establish paternity, Mr. Woodroof’s counsel made the following statements to the trial

court during closing argument:

I think in terms of the–the main issue in this case is deciding whether

Plaintiff should have parental access to Taylor in the form of

visitation rights at this time. The secondary issue would be the

economic support that my client should be required to pay for Taylor.

***

[U]nder the Ray v. Ray case [83 S.W.3d 726, (Tenn.Ct.App.2001)],

you know, he cannot be denied access to this child unless there’s

substantial harm. And I think the experts have agreed that there

would be substantial harm to the child if custody were transferred.

And I think that’s something I think all the experts agree. But we’re

not talking about transferring custody here. We’re talking about

visitation. I think all the experts agree that Taylor should know about

her biological father. [Emphasis added] 

During the December 8, 2003 hearing, the following exchange took place between the

attorneys and the court:

THE COURT: There’s not actually a present motion right now to

alter the current order of parentage that we have and the provisions of

that other than maybe modifying the–I guess, the information of the

process or how Taylor’s going to be informed of things. So I guess

we can assume for today that, you know, the custody is not going to

be awarded because it’s not been asked for at this time. 

***

MR. HARRIS: [attorney for Mr. Fisher]: Your Honor, just a second.

I just want to make sure we get in the record, because their motion,

petition in opposition to removal, does ask that he be declared as

having legal custody of his daughter. So ifthey’re not asking for that,

we need to make sure that’s in the record–that that part of that motion

is withdrawn. 

***

THE COURT: I assumed this was a prayer to accelerate the process

so that he could–so that the biological father could take the child to

Nashville. I guess, I’m assuming from reading that and under the
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present state of the record then, the recommendations that he’s not

meaning permanently. I thought for time-sharing purposes. . .

MR. HARRIS: I just want to make sure, because in my reading of

number 2, that’s the way I read it. And that’s the way everybody read

it. 

THE COURT: Mr. Chiles, are you all going to be presenting an

expert that says–on that issue?

MR. CHILES [attorney for Mr. Woodroof]: Your Honor, no, sir.

THE COURT: Because I don’t have a report from one, if you were.

So you’re not?

MR. CHILES: What this motion was–had to do with the objections

of the removal to the state of Ohio.

THE COURT: Right. But you’re not earnestly going to contend–if

you’re not going to have an expert in here, you’re earnestly under the

state of this record–from day one, you’re not going to contend that

and ask me to change physical custody to the biological father at this

time, are you?

MR. CHILES: No, sir.

The next day, December 9, 2003, Mr. Woodroof’s counsel stated the following to the trial

court:

MR. CHILES: If Your Honor please, yesterday when I was presenting

the petition in opposition to the Fishers’ removal of the child, there

was some confusion on my part, if Your Honor please, and I did not

have a chance to consult with my client with regard to the issue of his

requesting the Court to award him custody–legal custody of his

daughter. And he would like to be able to just briefly state his request

to theCourt, knowing Your Honor’s position on the thing on the case,

and then we’ll–that’ll be the end of that. But I–we’d like to be able

to put him on the stand for that purpose, if Your Honor please. 

***

THE COURT: I think when Ms. Arnfield was on the stand, I

requested that myself to be sure there was a clear understanding so

that we could elicit her opinion based on that position. So I don’t–I

don’t accept the proposition that there was a misunderstanding.
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There might have been a change of mind last night, but I think it was

perfectly clear, and it’s just a changing of the mind. So I don’t accept

your proposition. I think it was absolutely clear. It was asked once if

not three times to be sure. So I don’t see how it could be a mistake.

MR. CHILES: Well, if Your Honor please, I believe he did testify

that when they read this paragraph in the petition that that was his

position. He takes the position that–

THE COURT: You spoke for him as counsel when the question was

specifically asked, and see what–and then Ms. Arnfield testified based

upon his counsel’s statement. And see, that could have changed her

testimony or it might have generated more questions from Ms.

Arnfield in response to what I assume now is his overnight position

of wanting custody at this time. And, of course, she’s not here now.

So that could be prejudicial to the other parties in this case, and I

just–I just don’t accept your representation that he didn’t understand.

The trial court allowed Mr. Woodroof to make an offer of proof at the conclusion of the hearing.

He testified in relevant part as follows:

Q: Mr. Woodroof, you–are you asking that the Court declare you to

have legal custody of your child?

A: Yes, I am.

Q: And what is the basis of your request, sir?

A: I feel that I have a constitutional right to custody of my daughter.

That I am the only biological parent, the only living, biological parent

to Taylor Leigh Fisher and that I feel that I have that constitutional

right.

***

Q: . . .Mr. Woodroof, you were here back in December and prior to

that at the other hearings, correct?

A: That is correct.

Q: And you presented two experts that you hired on your own at that

time?

A: That’s correct.
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Q: And both those experts testified at the previous hearings that to

transfer custody of this child to you at that time would cause

substantial harm to the child?

A: At that time they testified to that. That is correct.

Q: As a matter of fact, all four experts who testified in this case,

testified to that fact. Is that true?

A: At that time, they did. That is correct.

Q: Now, as we sit here today, do you have any evidence to present to

contradict those four experts’ testimony?

A: I do not have any evidence to contradict those four experts’

testimony except for my testimony that I feel that I have the

constitutional right to my daughter. . .

Q: Do you. . .

A: and I believe that that supersedes any medical experts’ testimony.

As can be seen from the above excerpts, the trial court was faced with a request to consider

custody as an issue only after six days of hearings spread over a period of some sixteen months, after

numerous witnesses had testified and more than a thousand pages of their testimony had been

transcribed, and after the court and opposing litigants had been repeatedly told that “custody isn’t

an issue in this case.” Fundamental fairness supports the judgment of the trial court, which listened

to and evaluated the proof under the impression that visitation was the issue being litigated. Mr.

Woodroof’s party opponents presented evidence and cross-examined witnesses under the same

impression. See In re Adoption of E.N.R., 42 S.W.3d 26, 32 (Tenn.2001)(stating “[w]e are of the

opinion that there is little difference between an issue improperly raised before the trial court at the

last minute and one that was not raised at all.”). We find no error in the trial court’s decision not to

alter or amend its previous order designating the Fishers as having primary residential custody. 

Further, while custody was not tried as an issue, expert testimony was elicited or developed

on the potential effects of a change in custody, primarily because the experts generally testified that

when Taylor discovered she had “another father,” this knowledge would potentially be a source of

fear and concern to her if she thought it raised the possibility that she would be removed from the

only family unit she has ever known. As already quoted above, both Mr. Woodroof and his counsel

readily admitted that the experts agreed that given Taylor’s medical and psychological problems, a

change of custody to Mr. Woodroof would cause substantial harm to her. All of the evidence

regarding the Fishers’ family indicates that they have provided a loving, nurturing and deeply

supportive family structure for Taylor. It is significant in this case that Mr. Fisher, who was married
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to Mother at the time of Taylor’s birth, and who thought he was the biological father until DNA

testing took place, is the only father Taylor has ever known.

While it is clear that Mr. Woodroof as the biological father has constitutional parental rights

to a relationship with his child, see, e.g., In re Adoption of Female Child (Bond v. McKenzie), 896

S.W.2d 546 (Tenn.1995), we wish to make it clear that custody was not an issue in the case, pursuant

to Mr. Woodroof’s amended petition and his repeated statements to the trial court that, in effect, he

was not yet seeking custody, but rather visitation only. Therefore, our decision does not affect

custody of the child as between the parties. Mr. Woodroof’s petition for custody may be heard in

the future, if he chooses to pursue same, as an initial petition for custody with no requirement that

he show a material change in circumstances, rather than a petition for change of custody. 

Mr. Woodroof has not appealed the visitation schedule set forth by the trial court’s order.

He testified that “I would dearly like to follow the visitation schedule that was set up by this Court.”

The delay in implementing the visitation schedule has been lengthy and unfortunate, and it is time

to begin that process. It is apparent, however, that since the Fishers’ move to Columbus, Taylor has

a new set of primary medical caregivers. Upon remand, the trial court is directed to amend its order

to reflect the current reality of the identities of her current treating medical practitioners and her

current therapists, and to grant the appropriate decision-making authorityto the appropriate persons,

keeping in mind Mr. Woodroof’s constitutional right to attempt to foster a relationship with his

biological child. Pending the trial court’s review of the visitation schedule, we order that Mr.

Woodroof shall have visitation with the Child for four hours each week under the supervision of

Child’s therapist, or the therapist’s designee, for a period of eight weeks. If at the end of that eight

week period, the trial court has not acted, then Mr. Woodroof’s visitation shall increase to eight

hours each week of unsupervised visitation in Columbus, Ohio. 

IV. Conclusion

For the aforementioned reasons, the judgment of the trial court is affirmed, and the case

remanded with instructions to the trial court to amend its visitation order in accordance with the

preceding paragraph. Costs on appeal are assessed to the Appellant, Brett W. Woodroof, and his

surety.

_____________________________________

SHARON G. LEE, JUDGE