### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 2, 2001 Sess

ion IN THE MATTER OF: HANNAH GA YLE PARLOW A Direct Appeal from the Juvenile Court for Shelby County No. K6666 The Honorable George E. Blancett, Special Judge

No. W2000-01462-COA-R3-CV - Filed June 14, 2001

After paternity was established and Mother was granted custody of minor

daughter, Father filedpe tition to change custody on the ground of material cha nge of circumstances consisting of Mother’s remarriage to an allegedly violent man, and Mothe r’s intention to move with the child out of the state. The juve

nile referee d

enied the petition

and, upon a de novo

trial be fore a special juvenile judge of the juvenile court, Father’s petition was denied. Father has appe aled. We affirm. Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Juvenile Co

urt Affirmed and Remanded W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in whichA LAN E. H IGHERS , J. and A LAN E. G LENN , J., joined. William Bryan Penn, Memphis, For Appellant, Timothy F. Parlow Richard M. Murrell, Memphis, For Appellee, Eden Nicole Clifton OPINION On May 11, 1999,

petitioner, Timothy

F. Parlow (“Fa

ther”), filed a

peti tion agains t defendant,

Eden Nichole Davis (Mother), to establish paternity and his parent age of Hannah Gay le Johnson, born July 24, 19 97. After a hear

ing, the juvenile

court entered its decree which held that said child was a legitimate child of Father, that custody of said ch ild be awarded to Mother, that Father pay all medical expenses incident to the child’s birth, that no support be ordered by agreement of the parties, that F

ather shall provi

de medical insura

nce or alternat

ively be responsible for medical expenses , that the sur name for the child be changed to that of the Father, and that the costs of the cause were adjudged against Father. The parties stipulated that in lieu of child support, Father agreed to pay for specific items for the child, including the cost of dayc are provided by Father’s sister.-2-

On April 6, 2000, Fat

her filed “Pe

ti tion to Change Custody” alleging that Mother had remarried to an allegedly

violent person who

is a threat to the minor child, and that Mother ha d told Father that she intended to move with the child from the State of Tennessee. Father alleges that there has been a material change of circumstances and that the best interests of the child require tha t custody be changed. After a nonjury

trial, the juvenile

court entered it

s order on May

25, 2000, which sta

tes: This cause came on be

fore the Honora

ble George E. Bla

ncett, Specia l Jud ge, J uve nil e Co urt of M emp his and She lby C oun ty, Tennessee, and upon testimony and the entire record

the Court finds that said child should remain in the custody of her mother. IT IS THEREFORE ORDERED 1. Tha t sa id c hil d sh all rem ain in t he cu sto dy o f her m other, Eden Nicole Davis Johnson, to reside in the State of Virginia. 2. That the father

of said child, Timothy Frederick Parlow,shall pay $279.3 0 month ly, fee included, to the Central Child Support Receipting Unit, toward the support of said child, beginning May 1, 2000. Unless

specifically ordered, support shall not be reduced nor prorated. 3. That the father of said child shall provide medical insurance for the minor child and the parties shall split the medical expenses not covered by insurance. 4. That the father o

f said child shall ha

ve visitatio

n privilege s with said child as follow

s: A. Prior to said child attending school starting with kindergarten, he shall have the chi

ld as follows: (1) fo r two week visits three (3) times each year. Eachtwo week visit shall be separated from the other by at least ten (10) w eeks. These visits shall not be exercisedduring the months of D ecem ber o r Ja nua ry. (2) Each year from December 26 until January 8. B. When the child begins school at kindergarten, the child shall visit with her father a

s follows:-3- (1) For four weeks

visit e ach summer commencing after the close of the sc

hool year a

nd endin g at le ast one week befor

e school resumes. (2) Each year from December 26 until January 8. (3) The child

shall visit each year with the father duri ng the school’s sprin g break begin

ning the first Sunday after break be

gins, and to

returnto the mother at least one day prior to school resuming. In either event, the father shall give the mother at least four (4) weeks notice of intended vis it period unless waived by the mother. C. In the event the mother visits Memphis orthe father travels to the city of the mother’s residence to visit, the father shall be al lowed re asonable

visitation at said location for at least two nights of each week visit. D. The father shall pay the cost of t h e child’s transpo

rtation to Me mphis and the mother sha ll pay the cost of the child ’ s transportation back to the mother’s home. E

. The parental bill of rights pursuant to Tenn. Code Ann. § 3 6-6

- 110 (a) shall be included in this order by reference. Jurisdiction for enforcement

andmodification of thi

s order shall rema

in in the State of Tennessee. 5. That the father of said child, Timothy Frederick Parlow, shall pay an additional fee to

th e mot her’s attorney, Richard Murrell, in the amount of $750.00 and that the $1,000.00 fee awarded April 13, 2000 be reconfirmed. Father has appealed and presents three issues for review as stated in his brief: 1. Wh ether there was proper disposition of the mother’s relocat io n with the child pursuant to Tenn. Code Ann. § 36-6-108. 2. Whether visitation was sufficient to protect Appellant’s rights of due pro ce ss and parentage under the Tennessee and United States Constitutions.1 § 36-6-108. Par ent rel ocation (a) If a parent who is spending inte rvals of time with a child desires to r elocate outsi

de the state

or more than one hundred (100) m iles from the oth er parent with in the state, the relo cating pare nt shall send a notice to the other parent at the other parent's las t known address by registered or certifi ed mail. Unless exc used by the court for exigent circumstances, the notice s hall be maile

d not later

than sixty (60) days prior to t he move. The notice shall contain the following:

(1) Statement of

intent t o move; (2) Location of proposed new residence; (3) Reasons for proposed relocation; and (4) Statemen

t that the othe r parent may fil

e a petit ion in oppos

ition to the move

withi n thir ty (30) da

ys of receipt of the notic

e. (b) Unless the parent

s can agreeon a new visitatio n schedule, th e relocating p arent shall file a petition seeking to alter visitation. The court shall conside r all relevant factors, including those factors enumerated wit hin subsection (d). The court shall als

o consider the avai

labilit y of alter native arran

gements to fos

ter and continu e the child's relation ship with and access

to the ot her parent

. The court

shall assess the cost s of tr ansporti ng the ch ild for visit ation and determine whether a deviation from the chi ld support

guideli nes shoul

d be consider

ed in li ght of al l fact ors incl uding, bu

t not limited to, additional costs incurred for transporting the chi ld for visitati

on. (c) If the parents are actuall y spending substantially equal intervals of ti

me with the chi ld and the re locating parent seeks to move w ith the child, the oth er parent m ay, within thirty (30) d ays of receipt o f notice, file a petition in oppositi on to removal

of the ch ild. No pre sumption

in favor of or against t

he request to r

elocate wit

h the child s

hall aris e. The court sh

all det ermine whe

ther or n ot to permit relo cation of the c hild based upon the b est interests of the ch ild. The court shall

consider all

relevant f

actors incl

uding the fol

lowing where appli

cable: (1) The exte

nt to whi ch visi tation right s have been

allowed an

d exercised; (continued ...) -4- 3. Whether t he cour t properly disposed of the dependency and neglect issues. Appellee has also listed a “ Statement of the I

ssues for Review”

in her brief, but i

tappear s that these are in rea

lity respons

es t o the issues and arg uments presented

by the appe

llant. Accordingly

, we will not conside

r these as issues f

or specific trea

tment. Appellant’s first issue is stated as: Whether there was proper disposition of the mother’s relocation with the child pursuant to Tenn. Code Ann. § 36-6-108. Although Father’s petitiondid not make specif ic reference

to the parental relocation statute, T.C.A. § 36-6-10 8 (Supp. 2 000), Father ap parently w

as treating his p

etition as opposition

to Mother’s proposed relocation. We note, however, that neither par ty complied with the provisions of the relocation statute. 1 Father asserts that this case is controlle d by subsect

ion (c) of the sta

tute1 (...continue d) (2) Whether the primary r esidential

parent, once out

of the juri sdiction, is likel y to comply wit

h any new visitation arrang ement;

(3) The love,

affect ion and emot

ional t ies exi sting

between t

he parent

s and chil

d; (4) The dispos

ition of the paren

ts to pr ovide the child wi

th food, clot

hing, medical

care, educati

on and other necessary care and the degree to which a parent has been the primary caregiver;

(5) The imp ortance o f continuity in the child 's life and the length of ti me the child has

lived in a s

table, satisfactory envir onment; (6) The stability of the family unit of the parents; (7) The mental and physical health of the parents; (8) The home, school and commun ity r ecord of t

he chil d; (9) The reas onable preference of the child if twel ve (12) years of age or older. The court may hear th e preferenceof a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;

(10) Evidence of physical or emotional abuse to the child, to t he other parent or to any other person; and (11) The character

and beha vior of any oth er person who reside s in or frequen ts the home of a parent and such person' s inte

raction s with the chi

ld. (d) If the parents are not actuall y spending substantially equa l in tervals of time wit h the child and the parent spending the gr

eater amount of ti

me with the child proposes to relocate wit h the child, the other parent may, within thirty (30) days of rece ipt of the notice , file a petition in opposition to removal of the child. The other par ent may not

attempt to relocate wi

th the chil

d unless express

ly authori

zed to do so by the court pursuant to a change of custody or primary custodial responsib ility. The parent s pending t

he great er amount of

time with the child shall be perm itted to reloca te with the child unless the court finds:

(1) The relocation does not have a reasonabl e purpose; (2) The relo cation wou ld pose a threat of specific and serious harm to t he child which outweighs the thr eat of harm to th

e child of

a change of

custody;

or (3) The parent's motive for relocating with the child is vindict ive in t hat it is int ended to def

eat or det er visi tation rights of the n on-cust odial pare

nt or th e parent s

pending l

ess ti me with t

he chil d. Specific and serious harm to the child incl udes, but is not limit

ed to, the following: (1) If a parent wishes to take a child with a serious m edical pro blem to an area whe re no ade quate treatm ent is readily avai

lable; (2) If a parent wishes to take a child wit

h specific e

ducational req

uiremen ts to an area with no accep table education facilities; (continued ...) -5-1 (...continue d) (3) If a parent wishe s to relocate and take up resid ence with a p erson with a history of child or domestic abu se or who is currently abusing alcoho l or other drugs;

(4) If the child relies on the parent not relocating who provides emotional support, nurturi ng and development such tha t removal

would res

ult in severe emot

ional det riment t o the chi ld; (5) If the custodial parent i s emotionally disturbed or dependent such tha t the cu stodial

parent i s not

capable of adequatel

y parent ing the child i n the abse

nce of suppor

t syst ems curren

tly i n pl ace in this sta te, and such support syste m is not a

vailabl e at the proposed rel

ocation s ite; or (6) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visit ation rights of non-custodial

parents, whi

ch does not have an adequat ely funct ioning legal

system or whi

ch otherwise presents a substa ntial risk of specif ic and ser

ious har m to the ch

ild. (e) If the court finds o ne (1) or m ore of the gro unds design ated in subse ctio n (d), the cou rt shall determine whether or n ot to permit relocation of the child base d on the best interest of the child. If t he court finds it is

not in the best interests of the

child to reloc ate as defined herein, but the p arent with whom th e chil d resi des th e majori ty of the t ime e lects to rel ocate, the court shall make a custody determinat ion and shall consider all relevant factors including the following wh

ere applicable: (1) The exte

nt to whi ch visi tation right s have been

allowed an

d exercised; (2) Whether the primary r esidential

parent, once out

of the juri sdiction, is likel y to comply wit

h any new visitation arrang ement;

(3) The love,

affect ion and emot

ional t ies exi sting

between t

he parent

s and chil

d; (4) The disp osition of the p arents to provide the chil d with food, cl

othing, medical

care, educati

on and other necessary care and the degree to which a parent has been the primary caregiver;

(5) The importance of conti nuity in the child'

s life and the length of t ime the chil

d has lived in

a stable, satisfactory envir onment; (6) The stability of the family unit of the parents; (7) The mental and physical health of the parents; (8) The home, school and commun ity r ecord of t

he chil d; (9) The reas onable p reference o f the child if twelve (1 2) years of age or old er. The court may hear the preferenceof a younger child upon request. The preferences of ol der children should normally be given greater weight than those of younger children;

(10) Evidence of physical or emotional abuse to the child, to t he other parent or to any other person; and (11) The character and behavi or of any other

person who r

esides i n or frequ

ents t he home of

a parent and such person' s inte

raction s with the chi

ld. (continued ...)

-6-1 (...continue d) The court shall consider the avail ability of alt

ernative arrangements to foster and continu e the chil d's relationship with and access to the other parent. The court shall assess t he costs of transporting the chi ld for visitati

on, and determine whether a deviation from the child support gui delines should be considered in light of al l factors including, but not limited to, additional costs incurred for transporting t he child for visitat

ion. (f) Nothing i

n this section shall prohi

bit either parent from petitioning the court at any time to ad dress issues, (such as, but not limited to visitation), othe r than a chang e of custod y related to the m ove. In the ev ent no petition in oppositi on to a prop osed relo cation is filed within th irty (30) days o f receipt of the no ti ce, the parent propo sing to relocat e with t he chil d shall be permitt

ed to do so. (g) It i s the legislati

ve intent that the gender of the parent who seeks to relocate for the reason of career, education al, professional, or job opportu

nitie s, or oth

erwise, shall not be a f

actor in favor or against t

he relocation of

such parent wi

th the c hild. -7- relating to parents

that spend substantially equal intervals of time with the child. On the other hand, Mother asserts that theydo not spend substantially equal intervals of time with the child, that she spends the g reater amount of time and under these circumstances, and that subsection (d) of the statute controls. Mother w

as granted cus

tody of the c

hild initiall

yand has retained custody throughout

the child’s life. Moreover, a review of the record reveals that while Father had liberal visitation, it d id not rise to an equ al interval of time

with the child. Acc

ordingly, if the statute is app lie d, s ubs ect ion (d) wou ld b e th e cor rect sta nda rd f or t he t ria l co urt to a ppl y. Although the trial court did not make specific findings of fact in the order appealed, the trial court did state from the bench that it found no spousal abuse on the part of Mother’s spouse and that the majority of

the evidence of

fered adverse

to Mother’s ability

to care for the c

hild has been with regard to her relationships with other people. There was no evidence that she was subjecting the child to undesirable elements or other wise not taking care of the child. The court opined that the referee made the correct decision in not changing custody from Mother to Father. The court further statedthat it found no evid ence of any

malice on the par

t of Moth er in wanting to m ove with the child out of state. The court showed concern as to the uncertainness of employment of Mother’s husbandand their living a rrangements

in their proposed move. Accordingly, the court instructed the parties to furnish addition al information con

cerning the fin

al pla ns, a nd the court would hold the matter in abeyanc

e until this was done. A s noted, the court’s order was entered May 25, 2000, allowing Mother to move with the child to the State of Virginia. The record is silent as to any further information furnished to the c ourt and we mu st the refore assume t hat the parties sa

tisfactorily complied with the court’s instructions since the court entered the order allowing the move. From our review of the record, it appears that the trial court made a determination from the entire body of proo

f that Mother’s pr

oposed relocatio

n is not adverse to

the best interests of the child, as required by T.C.A. § 36-6-108 (c). Whil e Mother had form

erly beenan exotic dancer, there was no proof that her occupation had an unfavorable effect on the child. Moreover, Mother was engaged in this occupation at the time custody was first awarded and had actually ceas ed such occupation prior to Father filing his petition. Father presented some proof concerning what he termed as abus

e by Mother’s boyfriend, who later became her husband, but

this proof was refuted by proof presented-8-

by Mother which was accredited by the trial court. The proof e stablishe d that Fathe r had been allowedliberal visitation r ights and that Mother wo

uld comply

with any new

visitation arrang

ements nece ssa ry. Both parties show love and affect ion for the child and their disposition to provide the necessaries for the child. The child had been in

the custody of Mother since her birth, and Mother has provided a stable environment, notwithstanding her frequent changes of occupation. Mother had rem arried near the time Fa ther’s petition wa

s filed and appea

rs to have a stable

family unit. B oth parentsappear to be in good physical and mental health, and there simply was no evidence of any emotional or physical

abuse to the child or anyone else. Judging from the remarks of the trial court from the bench, it appears that, simply stated, Father did not prove that the move with Mother

would be adverse to the best interests of the child. The evidence preponderates in favor of the trial court’s determination. The second issue f

or review, as sta

ted in Father’s b

rief, is: 2. Whether visitation w

as sufficient to

protect Appellant’s rights of due proces s and parentage under the Tennessee and United States Constitutions. Father has failed to specifically point out just how his due process rights have been violated. The record reflects that the trial court suggested, and counsel for both parties ag reed, that the parties could probably work out

their visitation arrangements. The trial court set out liber

al visitation righ

ts in the final order, and Father has not complained about the extent of the visitation ri

ghts. Father’s complaint in his brief is that “the

relocation of Ha

nnah deprives him o

f the opportunity

to raise and provide appropriate

guidance to Hannah. In essence, relocation effectively terminates appellant’s paren tal rights.” As we h ave previously

noted, Father w

as granted libe

ral visitation rig

hts an d apparently is not complaining that he has not been granted such r ights. In Nale v. Robertson , 871 S.W.2d 674 (Tenn. 1994), the Court said:

Parents, including parents of children born out of wedl o ck, have a fundamental liberty interest in the care and custody of the ir children under both the Unit ed States and Tenn

essee Constitutions

. Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 120 8, 31 L.Ed.2d 551 (1972); Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993). However, this right is not absolu

te and the State ma

y interfer e wit h par ental rights if there is a compelling State interest. Santosky v. Kramer , 455 U.S. 745 , 102 S.Ct. 1388, 71 L .Ed.2d 599 (1982); Hawk v. Hawk , 855 S.W.2d at 579. Id. at 678. The United States Supreme Court noted in Santosky , that one of the interests at stake was “a parens patriae interest in preserving and promoting the welfare of the child.” 455 U.S. at 766.-9-

Whilewe recog

nize Father’s fundamental right, the situation presented to us is the lack of a two-parent

family unit. With the competing interests of one parent aga

inst the other, the

state must allow courts to step in to resolve the differences. In Pizzillo v. Pizzillo , 884 S.W.2d 749 (Tenn. Ct. App. 1994), this Court said:

Child custody and visitation disputes require the courts to focus on the welfare and best interests the child. Lentz v. Lentz , 717 S.W.2d 876, 877 (Tenn. 1986); Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983). While the parents ’ respective rights and desires are secondary in these proceedings; Doles v. Doles , 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992); Griffin v. Stone , 834 S.W.2d 300, 302 (Tenn. Ct. App. 1992), they should not be ignored. Neely v. Ne ely , 73 7 S.W.2d 539, 542 (Tenn. Ct. App. 1987). A child’s interests are well-served by a custody and visitation arrangemen

t tha t promotes the deve lopment of relatio

nships with boththe custodial and the noncustodial pa re nt. Rogero v. Pitt

, 759 S.W.2d 109, 11 2 (Tenn. 1 988)(relationsh ip with both parents

); Bryan v. Bryan , 620 S.W.2d 85, 88 (Tenn. Ct. Ap p. 1981) (relatio

nship with a noncustodial pare

nt); Dillow v. Dillow , 575 S.W.2d 289, 291 (Tenn. Ct. App. 1978) (relationship with a noncustodial parent). Thus, the court’s should devise custody and vis itation arrangements that interferewith eachparent’s relati onship with his

or her child as litt

le as possible. Id. at 755 (citations omitted). Accordingly, Father was not deprived of a ny due process rights. The last issue for

review, as state

d in Father’s bri

ef, is 3. Whether the cou rt prop erly disposed of the dependency and neglect issues. Father made no argument concerning this issue which was presen ted as one of the three issues for review. Accordingly, we will not address this issue. Father did, however, pr

esent a third issue

in the argument section of his brief which is stated in the brief as: The Juvenile Court of ShelbyCounty, Tennessee abused its judicial

discretion by excluding the evidence of the appellee’s behavior of the time before appellant established paternity and issues of abuse.-10-

In this issue, Father

assertsthat the trial court erred in excluding evidence of the appellee’s behavior during the period

beforethe entry of the original order granting her custody of the child. We have searched the transcript of the trial testimony from beginning to end and find that at no part of the trial did Father make an offer of proof of any allegedly e

xcluded evidence. In the absence of a statement of the substance of the evidence or an offer of proof, the issue as to the propriety of the excl usion of evid ence is not reviewable on appeal. See Tenn.R.Evid. 103 ( a)(2); Rutherford v. Rutherford, 971 S.W.2d 955 (Tenn. Ct. App. 1997). Should we have overlooked an offer of proof, we should also note that if thematters excluded were limitedentirely to

the period prece

ding the origin

al order of custo

dy, the tria

l court correct

ly excluded the evidence. Child custody and visitation decisions once made and implemented are res judicata upon the facts in e xistence or reasonably foreseeable when the decision was made

. See Adelsperger v. Adelsperger , 970 S.W.2d 482 (Tenn. Ct. App. 1997). The order of the juvenile court is affirmed, and the case is remanded to the juvenile court for such further procee

dings as may

be necessary

. Costs of th

e appeal areassessed agai nst appellant, Tim oth y F. P arl ow, and his sur ety.

__________________________________________ W. FRANK CRA

WFORD, PRESIDING JUD GE, W.S

.