# FILED
October 29, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

CHRIS SENS ING, ) ) Plaintiff/Appellant, ) ) Appeal No. ) 01-A-01-9701- JP-00042 VS. ) ) Humphreys J uvenile/Pr obate ) No. J-3454-95 KARRIE DODSON, ) ) Defendant/Appellee. )
APPEAL FROM THE JU VENILE AND P ROBATE COURT

OF HU MPHR EYS C OUNTY AT WAVERLY, TENNESSEE THE HONORABLE ANTHONY L. SANDERS, J UDGE

PHILLIP M. GEO RGE P. O. Box 467 511 Enon Springs Road, East Smyrna, Tennesse e 37167 Attorney for Plaintiff/Appellant WILLIAM LANDIS TURNER 102 No. Court Street P. O. box 789 Hohenwald, Tennessee 38462 Attorney for Defendant/Appellee

AFFIR MED I N PART ; VACA TED IN PART; AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J.- 2 - 

## O P I N I O N

This case invo lves a father 's right of visitati on with his minor child born out of wedlock. Becau se we find that the trial court could have structured visitati on in a manner whi ch interfered l ess with the parent/chi ld rel ationshi p, we remand this
case fora re-struc

turing of the v isitation ar rangement in accordance w ith the follow ing opinion.

I. Facts

In 1989, Chris Sensing ("t he Father") and Karrie Dods on ("the Mother ") entered a relationship which resulted in the b irth of Taylor Nicole Do dson ("the Chi ld")
on June 24, 1990. Tho ugh theirrelationshi p was over by the time the Child was born, the parties cont inued to be in communication throug hout the Mother's pr egnancy. By his own admission, the Father was minimally involved in the earlyyears of the Child's life. The evidence showed that hi s visi ts with the Child were sporadic and h is efforts to financially

support her

were ins ignificant. The Father accounted for this

failure wi th testimony that he was y oung and irresponsible at t his point in his life.
However, in December of 1994, w hen the Father married Terr i Sensing and became the step father of her two c hildren, his attitude toward the Child greatly changed. He testified th at, at this ti me, he became a devo ut Christia n and an invol ved member of a Pentecostal church. Terri Sensi ng testified t hat the Father i s a wonderful father to her two children. Theyhave decided together to keep alcohol and dr ugs out of their liv

es. Mrs. Sensing under stan ds what the M other is g oing throug h and that- 3 -

her husb and , the Fath er, h as no t alwa ys acted responsibly in the past. M rs. Sensing stated that she has encouraged the Father to establish a relationsh ip with the Child.

The court proceedings in this case beg an with a he aring on theFather's "Petition to Establish Paternity and to Set Child Suppor t and Visitati on" which r esulted in an "Order of Patern it y" entered M arch 11, 1996. As well as establishin g the Father's paternity , this order set child s upport and ordered that vis itation be "implemented gradually " beginning with tw o hours ever

y tw o weeks. On July 30, 1996, the court entered a second order after holding a hearing on the Father's "Motion to Increase Visitation and to Decrease Child Support." In this order, the court decreased child support but increased the visi tation to six hours ever

y two weeks w ith the provisi on tha t "[o]n September 13, 1996, the vis itation w ill increase to over night vis itati on" from 6:00 p. m. Fri day t o 6:00 p .m. Saturday. These visi tation prov isions
were allowed to stand in the court's third and final order i ssued on October 17, 1996.

II. Visitation

On appeal, the Father challenges on ly the visi tation arrang ement set by the court below. He asserts first that the trial judge erred af ter the second and third hearing by not ex panding his visitati on with theChild to st andard vis itation. See Tenn. Comp. R. &Reg. R. 1240-2-4-.04(1)(b)(a section on child support guideline s, defining "average visitat ion" as "ever y other weekend from Friday evening to Sunday e vening, two weeks dur ing the summer and two weeks during holiday periods thr

oughout the year"). The Fath eroffers the unco ntroverted testimony that the two-hour bi-weekly visitati on structured by t he court in thefirst order had been successful and had resulted in the Father and t he Child bondi ng. He test ified thathe was drivin g over t wo hundred miles r

ound trip for the two hours of visitati on.- 4 - The Mother contends

thatbecause the Child was born out of wedlock and because the Fath er has neglected the Child in the past, the Father has no ri ght to visitation at all. She cites Lawson v. Scott , 9 Tenn. 92 (1825), for the proposit ion that the m othe r of a child born out o f we dlock has superior r ights to a l egitimiz ing father. More recently, our supreme cou rt has held as follows:

The fathe r of a child born out of wedlock has a fundamen tal interest in the care and custody of the child under both the fe deral and state constitution s; however, the father must take a ffirmative steps to develop a responsible relationshi p with the child before his interest is sufficient to acquire constitu tional due pro ces s protection ; and, if the father has admitted his pater nity and ha s established a substantial relationshi p with the child, t he sta te may not interfere with that relationship exce pt to pr

otect t he chi ld from substa ntial harm. Petrosky v. Keene , 898 S.W.2d 726, 728 (Tenn. 1995) (citing Nale v. Rober tson , 871 S.W.2d 674 (Tenn. 1994)). In light of th is clear direction from the court, we reject the argumentthatthe Father has no r ight to v isitation s imply becaus e he was not married to the Mother. W e turn to a revi ew of the lower court's decision keeping in mind that the Father's r ights depend upo n whether he has "take[n] affirmative ste ps to develo p a responsiblerelationshi p with the child." Id.

We review the lower court decisi on de novo w ith a presumpti on or correctness. Tenn. R. App. P. 13(d); Blair v. Ba de nho pe , 940 S.W.2d 575, 576 (Tenn. App. 1996). In s o doing, we note the wel l establishe d law "that 'the details of custody and visi tation with children are peculiarly within the broad disc retion of the tri al judge . . . and that the trial court's decision will not ordinari ly be rev ersed absent some ab use of t hat discreti on.'" Suttles v. Sut tles , 748 S.W .2d 427, 429 (Tenn . 1988); Jahn v. Jahn , 932 S.W.2d 939, 941-42 (Tenn. App. 1996). The deference to the tr ial court rests on the fact

that "[c]ustody

and visi tation determinat ions often hinge on subtle fa ctors, including the parents' demea nor and credibility during the" trial court proceedings

. Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. App. 1996).- 5 - We find that the reco rd establis hes that the Father has taken s t eps to develop a relationship with the Child thereby entit ling him t o a co nsti tuti ona llyprotected interest in the Child's care and custody. See Petrosky, 898 S.W.2d at 728. We appr ecia te th e Fat her' s can did a ckno wledgm ent t hat h e has not a lways been a reliable parent to the Child as well as his current w illingne ss to accept hi s parental resp onsi bilit y. Furthermore , the Father's interest i n fatherhood, though delayed, has been consistent for the l ast f ew y ears of the Chil d's life. Our conclusion do es not, however, preempt a determi nation of the Child's best interests with regard to the t ype of visitat ion a rrang ement now at i ssue. In chil d custody and visitati on cases, "the desiresof the parents are secon dary" to the best interests of the ch ildre n. Gaskill, 936 S.W.2d at 630; Neely v. Neely , 737 S.W.2d 539, 542 (Tenn. App. 1 987). As our courts have made cl ear, the welfare of the child is and always has been the court's "paramountconsiderati on." Suttles , 748 S.W.2d at 429; D v. K , 917 S.W.2d 682, 685 (Tenn. App. 1995 ).

This court has recognize d tha t b ecause "stabili ty is i mportant to any child's well- being," the "con tinuity of placement in custody and v isitation cases" has been emphasized by

the courts. Gaskill, 936 S. W .2d at 6 30 (citin g Taylor v. Taylor , 849 S.W .2d 319, 328 (Tenn .1993)). This case invo lves a father who was notinvolved in his child's life until that child was four or five year

s old. At thi s time, the Chi ld had been r aise d solely by the Mother and barely

knew the F ather. In order ing a plan of gradual implementation of v isitation, t he court below seemed most concer ned that the Child be eased into this new relationshi p.

Mor eov er, we think it extremel y sign ificant that the t rial court was increasingvisitat ion. After only four months of two-hour bi-weekly visitation, the court orde red vis itat ion t o inc reas e to s ix hou rs eve ry two weeks with a plan to increase it to overnigh t visit ation wit hin the next two months. In announcing i ts decision not to alter visitation after t he fin al hearin g, the trial court acknow ledged that the Father was- 6 -

making an effort. The judge stated that he might change vi sitation in the future, "but it will be after a while." There is no evidence that the court was opposed to standard visitati on once the child was ready. In light of these circumstances, we find that the tri al court did not abuse its discretion by declining to increase visitation to standa rd forty-eig ht hour vi sitation.

III.

Dispute over the Child's Religious Upbringing

Last ly, we turn t o the Father's allegatio n that the tria l court showed a preference for the Mother' s church affiliat ion over hi s own. The proof was that the Father is an active member of a Pentecostal church wh ile the Mother and the Child regularly attend a Ba ptist churc h. Our court has spoken cl early on t he issue of the purposeful structuri ng of visi tation to prevent children from accompa nying theirnoncustodial parents to chur ch. Neely v. Neely

, 737 S.W.2d 539 (Tenn. App. 1987). In Neely , the court hel d that "[i ]n th e abs enceof ashowing of harm to the chil d, visit ation provisi ons cannot have t he effect of ad vancing one parent's religion w hile inhibi ting that of the other parent." Id. at 543.

The lower court in Neely had declined tomodify a vi sitation arrangement which required a fath er to retur n his child to the child' s mother in ti me for Sunday
mo rning chur ch. I n so d oing, the c ourt stat ed th at th e chi ld "n eed s sta bilit y an d needs to know where his church is and where his home is and to be co mfortable wit h that knowledg e." Id. at 541. The Court of Appeals reversed the lower court's decision noting the fundamental interests that natural parents have in their c hildren. Id. at 542 (citing State ex

rel. Bethel v. Kilvingt

on , 4 5 S

. W. 433, 435 (Tenn. 18 98)). The court stated that "[c]ourts

should attempt, to

the extent

warrant ed by the facts, to devise a custody and visi tation arrangement that interfe res with the parent/child relationship as little as possible. " Neel y , 737 S.W.2d at 542. When parents disagree as to the1 W hile the Fa the r te stif ied tha t his ch ur ch wa s "n ot to the no rm of c er tain ch ur ch es " as it incl uded heal ing ser

vice s, hand cl apping, and speakin g in tongues, the r ecord cont ained no proof that the child w ould be h arm ed b y exp osu re the thes e pra ctice s. - 7 - religio us upbringingof their children, "[ c]ourts must mai ntain stric t neutrality . . . . [A] court cannot prefer

the relig ious view

s of one parent over another unles s one parent's religio us beliefs and prac tices threate n the health and well- being of the chi ld." Id. at 543. The Neely

court concl uded that there had been no proof thatexposing the child to his f ather's church wou ld aff ect the child's well- being.

In the case before us, the trial court did order that overni ght vis itation be from 6:00 p.m. on Fri day to 6:00 p.m. on Sa turd ay, thereby precluding regular Sunday visitati on. Atthe second heari ng, the Mother testified that s he wanted th e Child to go to her ow n church on a ll Sunday mor nings: "I don' t think she sh ould be there fifty percen t of the time. I mean, her friends are ther

e, you know

her family . . . It 's he r schedule that's being interrupted, and it shouldn' t be." Upon being questioned by her attorney as to whether fort

y-eig ht hour vi sitation coul d be scheduled so that the Child would be with t he Mother for church, theMother sug gested that the Father bringher backearlier. Regarding the conflict, the court made only the following comment: "I'm not promoting any body's rel igion by saying this. But I think this c hild need s t he stability of, what w e always say, our own churc h. And I think this child needs that stability ."
By expressing concern that the Chil d experience the stabili ty of h er own church, the trial judge’s comments could be interprete d as stating a preference for the Mother's religiousviews. In Neely, we found such a preference to be u nacceptable absenta showingthat exposure to the father's v iews would harm the chi ld. 1 As this court has stated, it "should attempt, to the ex tent warr anted by the facts, to devise a custody and visi tation arrangement that interfe res with the parent/child relationship as little as possible. " Neely , 737 S.W .2d at 542. It is clear that the Fathe r's rights would have been violated had the lower court followed the Mother's suggesti on and orderedth e Father to re turn the Chil d in time for chur ch. Howev

er, it is less clear

when th e court, in an effo rt to grad ually easethe child i nto a relations hip with her father, had only ex panded visi tation to twenty-four hour s.

In order to ensur

e that the Father ’s righ ts are not v iolated, we vacate the visitati on order and remand this case to the tr ial court for a rehearing on the question of the Father’s visitation rights. The n umber of ho ursor d aysis l eftto the trial judge’s discretion in light

of the proof to be offered, but the determinat ion cannot be based on a preference fo r one parent’s religious views, unless the p roof shows that exposure to the other parent’s vi ews would be harmful to theChild.

We remand this case to the trial court for a determinatio n of the Father’s visitati on rights in accordance with the principles set out in thi s opinion. Tax the costs on appeal equall y to the appel lant and to the appel lee.

_____________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE