IN THE COURT OF AP PEALS OF TENNESSEE AT JACKSON IN THE MAT TER OF: BIANCA ARNESHE ASKEW, ) ) DOROTHY LEWIS, ) ) Petitioner/Appellee, ) Fayette Circuit No. 3807 ) Appeal No. 02A01-9708-CV-00201 vs. ) ) JULIE DONOHO, ) ) Respondent/Appellant. )

SEPARATE CONCURRENCE

HOLL Y KIR BY LI LLA RD, J. I agree with the

result reached by the majority, as well as the standard of proof adopted by the majority for a non-custodialparent to regain custody from a nonparent custodian. However, I write separately to clarify my understanding of this standard and its application in this case. As noted by the majority, the standard adopted in t his case is not the same as the standard for change of custody as between two parents. Wh ile both involve “changed circumstances,” the standardfor a change of custody as between two parents, the court must find a material change in circumstance s “compelling enough to warrant a change in custody.” Short v. Short , No. 03A0 1

- 9506-CH-00168, 1994 WL 728521, at *2 (Tenn. App. Dec. 11, 1995). The behavior of the custodial parent must “clearly posit[ ] or cause[ ] danger to the mental or emotional well-being” of the child. Musselman v. Acuff

, 826 S.W.2d 920, 923-924 (quoting Ballard v. Ballard , 434 So. 2d 1357, 1360 (Miss. 1983)). Because of the strong interest in stability for children, efforts by the non-custodial parent to improve his or her circumstances are not sufficient to meet this standard: In sum, then, in determining whether to change custody, the noncustodial parent has the burden of proving a material change in circumstances, that is, b e havior by the custodial parent which cle arly endan

gers the well-b

eing of the child

. Only afte

r it is determinedthat such a material change in circumstances has occurred does the trial court perform a comparative fitness analysis to determine if cus tody shoul d be changed. Efforts by t

he noncustodial pa

rent to improve his

or her circumstances are insufficient

to support a

determination of material change in circumstances; they are usually relevant only to t

he compa rative fitness analysis performed after there has been a threshold findin

g of a material

change in the c

ircumstance s of the custodial parent. William s v . William

s , Appeal No. 01A01-9610-CV-00468, Tenn. Court of Appeals, Western Section, 1997 Tenn. App. LEXIS 357 at *8 (filed May 23, 1997).In this case, however, involving a custody dispute between a p arent an d a non-parent, we

must consider the parent’s fundamental right to raise the child. See In re Adoption of Female Child , 896 S.W.2d 546, 548 (Tenn. 1995). The maj ority in this case holds that the non-custodial parent

must establish “changed circumstances showing tha t an award of custody to the parent would no longer result in substantial harmto the child.” The majority breaks this into two prongs: establishing “changed circumstances,” and then demonstrating “the absence of substantial harm to the child in the event of custodial modification.” To clarify, it is my understanding that “changed

circumstances”

in this context would mean establishing that the reason f or the initial custo

dy award to

the non-parent has been remedied. Once this is established, in determining whether substantial harm wou ld r esu lt f rom a cha nge i n cu sto dy, the Court would conside

r; interalia : (1) the non-cust odial parent’s e

fforts to maintain

a relationship withthe c hild and support the ch ild financially

, (2) the custodia

l non-parent’s c

ooperation with visitation and the parent’s efforts to maintain a relationship with the child, (3) circumstances in the homeatmosphere of either the custodial non-parent or the noncustodial parent which could be detrimental to the child, (4) any special needs of the child, and (5) the length of time the child has lived with the custodial non-parent. The Court must weight the fundamental rig

ht of the parent to rai se t he ch ild agai nst the chi ld’ s ne ed fo r st abi lit y and con tin uit y. In this case, the majority states that “the only fac tua l basis u pon which Donoho contends ‘changed circumstances’ was established is Donoho’s contenti

on that Lewis

failed to cooperate with Donoho in arranging

court ordered v

isitation.” Howev

er, in the trial court below, Donoho presented evidence that she has a stable home and supportive family members and is able to care for her other

two children. Although the record is apparently unclear about the reason for the original award of custody to Lewis, this evidence

would tend to

establish “changed circumstances,” the first prong of the standard. The maj ority states t hat the trial court never reached the second prong, the issue of whether substantial harm w

ould result

from a change in custody. However, the other evidence cited by the majority, Donoho’s infrequent visitation and irregular pay ment of child support, would ap pear to be relevant to the issue of substantial harm. Under the circumstances, I agree that Don

oho overall failed to present sufficient evidence to satisfy both prongs of the applica ble standard.

HOLLY KIRBY L

ILLARD, J.