1 The paragraphs are numbered consecu tively f or purposes of conveni ence. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE September 5,

2001 Session

THOMAS N. ROACHE v. JUSTINE BOURISAW

Appeal from the Chancery Court for Montgomery County No. 90-65-0284 Carol Catalano, Chancellor

No. M2000-02651-COA-R3-CV - Filed October 10, 2001

This case involves a n

on-custodial par

ent’s petitio

n for change of custody. The original marital dissolution agreement granted the mother full custody of the child and the father

alternate weekends andholidays and two weeks each summer. The mother later moved to Missour i, and the parties adjusted visitation accordingly. Later, the f ather filed and

was granted a contempt motion due to the mother’s failure to allow him to see the child. He subsequently filed a motion for change of custody which was also granted. The court found that the cir cum sta nces warr ant ed t he ch ange of cu sto dy. The mot her a ppe als . We affi rm t he t ria l co urt ’s c han ge of cus tod y.

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

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.
Gregory D. Smith, Clarksville, Tennessee, attorney for the appellant, Mary Justine Bourisaw.
Carrie W. Kersh, Clarksville, Tennessee, attorney for the appellee, Thoma s Neal Roache.

OPINION

Thomas Roache (“Father”) and Mary Justine Roache-B ourisaw (“Mother”) were divorced anda final decree

and Marital Dissolution Agreement (MDA) entered November 24, 1992. During the marriage, the

parties had one c

hild, a son born Mar

ch 16, 1988. The MD

A provided in

relevant part: 1

1. [Mother] shall retain exclusive care, cus t ody and cont rol of the said minor

child

. . .The [Father] shall have theright to visit with said child at reasonable times and reasonable places. The [Father] shall have the following specific visitation:2 There was testi mony that one of t

he incidents

between Mary and her st ep-father was due in part to Mary’s drug use which led to her placement in rehabilit ation.

2 A. every other weekend from 5:00 p .m. Friday until 5:00 p.m. Sunday on alternate week

ends; B. two (2) weeks in the summer; C. the parties shal

l alternate the f

ollowing holiday

s; a) Christmas Eve b) Christmas Day c) New Year’s Day d) Memorial Day e) Easter f) Fourth of July g) Labor Day h) Halloween i) Thanksgiving 2. The [Father] shall have t he righ t to reasonably

consult with school o

fficials concerning the child’s welfare, educational status and progress, includingaccess to pupil records. 3. The [Father] shall participate in the following decisions and these areas of custody shall be shared: s

ports, school, chu

rch and medical. 4. The [Father] and child shall have communications with e ach other by telephone and shall n

ot be inter

fered wi th by th e [Mother]

. 5. Both par ties will keep the o ther party informed of his or

her address at a

ll time s andwhen the child are[sic ] with that party the child shall kee

p the other party informed of the address and the telephone number. 6. The parties shall makeevery reasonable effort to provide acce ss to the other

parent and to support the c

hild’s feeling o

f love for the othe

r parent. 7. Neither party shall in any way attempt to harm, hinder, dec rease o r destroy the natural love the child [has] for the other parent. Neither parent shall speak badly of the other parent to the child. 8. Should either party move more than 75 miles from the current address, the above visitation schedule will be reallocated so the [Father] shall have visitation equivalent day-per-day

as now enjoyed, but arranged t o or app ropriately comply with the parties’ schedu

les, circumstanc

es and the child’s

best interest.

Mother had two other children from a prior marriage whom Father treated as his

own during the parties’ marriage. No issues regarding these other two children w ere included in the divorce decree or mari

tal dissolution ag

reement. Howev

er, in the fall

of 1997, Father obtained custody of the oldest daughter, Mary, due to phy sical abuse by Mother’s new husband in 1995 and 1996. 2

Father testified that since obtaining custody of Mary, he has had a difficu

lt time keeping in contact with his son. He has to have Mary call to talk to her brother and

then let Father s

peak with3 Mothe r signed her a ddress as b eing on Rh ythm Street in O verland, M issouri.

3 the child. Otherwis

e, Mother tells

him the child is not there or outside playing. On January 20, 1998, Father filed a motion for contempt stating that visitation with his son has been difficult since he has sought & received custody of Mother’s oldest daughter, and more specifically, he was denied visitation for Christmas of 1997. Father did visit with his son during the summer of 1997, alon g with the child’s half brother.
On November 10, 1998 the court below entered an order finding Mother

in contempt of the September, 1992 , divorce decree which . . . resulted in a deprivation of the Petitioner’s [Father’s] visitation privileges with the parties’ minor child.
and thereby

ordered specif

ic visitation betwe

en Father and c

hild

for the entire school vacation of the child for Christmas of 1998, includ ing New Years Eve and New Ye ars Day , beginning the day after school adjourns for the hol ida ys and ending the day before the child is to return to school in January, 1999. This is to make-up for th e visitation which the Petitioner [Fathe r] was denied in December of 1997.

The certificate of service on the order stated that it was sent to Mother at Campus Drive in St. Charles, Missouri. The testimony at trial established that this was the proper address when the petition was fil ed i n Ja nua ry, b ut a ppa rent ly by t he ti me of the hearing in November, Mother had moved. There was disputed testimony as to whether or not Father was aware of the

move and did not notify his

attorney of

the new address.

Father and Mary e

ach called Mothe

r to notify he

r that the chil

d would be picked up for Christmas. The re was testimon y at trial tha t the child was not to

be found when Fa

ther went to retrieve the child pursuant to the contempt order. Mother testifiedthat she first learned of the order when two police officers were standing in her living room on December 23. The next day she took the child to work with he r. She was called

to the courthouse

where a judge heard the case and on December 24, 1998, the parties entered into a handwritten order 3 agreeing that Father

shallbe awarded spe

cificvisitation with their

son . . . from 2:40 p.m

. 12/24/98 thru 2 p.m. 12/29/98 as a compromise to the above order issued 11/9/98.
Respondent,Justine Bourisaw, claims she received no notice of the contempt motion

or order. The court file in Tenn. is unavailab le due to poo r weather and holiday closings.4 We have numbered the paragraphs consec utively for purposes of conv

enience.

4 Both parties agree that their divorce decree needs to be modified to clarify visitation as they live

in separate

states. Both par

ties are encour

aged to seek le

gal counsel to do so.

Both parties are makingth is compromise order in the best interest of their son and to avoid unnecessary intervention by law enforcement during the holiday season.

On January 7, 1999 Father filed a petition fo r change of custody alleging continued interference

with visitation and p

otential harm due

to Mother leaving

the child with a ste

p-fathe r who

was alleged

to drink excessivel

y and to have

previously

abused the eldest daughter. Mother admitted to having received this petition and never filing a response. Thereafter, F ather was again denied visitation in the Summer of 1999 because Mother stated that if Father would not

take both boys then he could have neither. However, due to problems betweenthe other boy and Father’s wife during the previous summer’s visit, Father decided it was best if only his son came, but Mother refused.
Then on September

13, 1999, Father

amended the petit

ion to allege additional grounds for change of cust

od y including Mother’s refusal to allow the child to visit Father in the summer of 1999, the child’s doing badly in school, including failing at least two courses, and Mother ne glecting optometry

and dental needs of the child. After a full hearing, the court below entered a

lengthy eight page order on September 29, 2000 reciting much of the Marital Dissolution Agreement and further, finding in relev

ant part as follow

s: 4

1. [Father] testified that when [Mother] moved her guard duty to Missouri he saw the child less and that after he got custody of Mary Keaveny in 1997, it got worse; 2. [Mother] confirmed what [Father] said about the summer visitation for 1999, that she insisted that [Father] take both children . . . or see neither; 3. [Mother] admits that she has known that the child needed braces for two years but has not paid the $500.00 required to have them put on and that [Father] has offered to pay one-half of the expenses an d [Father’ s] insurance would pay $1,500.00 towards the expense; 4. [Father] testified that since he got custody of Mary in 19 97, it has been more difficult to get [Mother] to give him her address and phone number; 5. [Father] fileda contempt petition in 1998. [Mother] admits she signed for it, that she filed no answer and that at that time she lived on Campus Drive. [Mother] further admits that [Father] called her prior to trav eli ng to Missouri in December of 1998, andsaid he was coming

to get the chil d. The evidence has been that Mary even called[Mother]. This was after this Court has awarded [Father] the entire Christmas break from school. Despite all this, on December 24, 1998, [Mother] took the chil d to work with her. Apparently, she got a call from the 21st Judicial Circu it in Missouri asking her to come down there, which shedid. [Mother] told the Court that she recei ved no notice of th e contempt action. The significa nce here is not tha t5

[Mother] violated this Court’s Order of November, 1998, but the reason the Court gave[Father] the Christmas break from school for 19 98, in the first place - it was because [Mother] did not allow [F ath er] to see the child at Christmas of 1997. Further, because of theactions of [Mother] in 1998, [Father] got to see the child only five days during Christmas break; 6. [Father] testified that he has concerns regarding the clothes the child comes with for visitation and further that in 1998, the child

complained of headaches, so [Father] took him to the eye doctor and he needed new gl asses, whi ch [Father] go t f or him. [Father] further testified that prior to theproblems with visita tion, he would

set-up doctor’s appointments, but in the years o

f difficulty

with visitat ion it has been difficult to do that

; 7. [Father] further

testified that the child is impressed with regular meals, has a short attention span and

that when he is in tr

ouble, he lies and

is very ner

vous; 8. [Mother’s] husband’s treatment of Mary Keaveny was abusive; 9. The child . . . is at risk of substantial harm if he stays in the custody of [Mother] because of t he followi ng: a. t he co ndu ct o f [M oth er’s ] hu sba nd t owa rds Mar y Keav eny; b. [The child’s] needs

are not being me

t by [Mother], w

ith regard to school and medica

l and dental;

c. [Mother’s] willingn

ess to not allow a relationship between the child and his father.

I.

The standard of r

eview in child cus

tody cases i

s de novo upon the record of the tr ial court, andfindings of

fact are accompanied by a presumption of corre ctness unless the preponderance of the evidence is otherwise. Rule 13(d) T.R.A.P., Hass v. Knighton , 676 S.W.2d 554, 5 55 (Tenn. 1984). Further, a tria

l court is vested wi

th broad discreti

on in matt

ers of child custody, and an appellate court will not inter

fere with a dec

ision of the trial c

ourt except upon a s

h owing of erroneous exercise of that discretion. Hoalcraft v. Smithson , 19 S.W.3d 822, 827 (Tenn. Ct. App. 1999). Finally, in Adelsperger v. Adelsperger , 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997), thi s court made the fo

llowing observa

tion:
Custodydecisions are factually driven and require the car eful consideration of

numerous factors. See Holloway v. Bradley , 190 Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950); Scarbrough v. Scarbrough , 752 S.W.2d 94, 96 (Te nn. Ct. App. 1988). Since these decisions often hinge on the parties’ credibility, appellate courts a re reluctant to second-guess trial judges who have observed the witnesses and assessed their credibility. See Gilliam v. Gilliam , 776 S.W.2d 81, 84 (Te nn. Ct. App. 1988). Acco rdi ngly, we decline to disturb cus tod y decisions unless they are based on a material error of law or the evidence preponderates against them. See Has s v. Knighton
, 676 S.W.2d 554, 555 (Tenn. 1984); Gaskill v. Gaskill , 936 S.W.2d 626, 631 (Tenn. Ct. App.

1996); Griffin v. Stone , 834 S.W.2d at 301.6 II.

Father’s change of custody petition is based upon his cla

ims that Mother inte

rfered with his rights to visitation, and thereby his relationship with his child, Mother’s neglect for the medical and dental needs of the child, n eglect of his educational needs, and subjecting him to an environment which was ab usive and i nvolved he avy drinking.

Courts are empowered to change custody “as the exigencies of the case may require.” Tenn. Code Ann. § 36-6-101. The requirements for a change of custody are that the party seeki ng the change prove

that the child’s circumstances have materially change d in a way that could not have been foreseen at the time of the original decision, and that the child’s best interest will be served by changingthe existing custodial arrangements. Adelsperger , 970 S.W.2d at 485; Musselman v. Acuff
, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). Before engaging in a best interest analysis, the court must determine whether there has been a material change in circumstances.

This decision [regarding custody] is not changeable except for “ change o f circ umstances ” which is defined as that which requires a change to prevent substantial harm to the child. Custody is not changed for the welfare or pleasure of either parent or to punish

either parent, b

ut to preserve the

welf are of the c hild. Custodyis notchanged because one parent is able to furnish a more commodious or pleasant environment than the other, but where continu ation of the adjudicated custody will substantially harm the child.

Wall v. Wa

ll , 907 S.W.2d 829, 834 (Tenn. Ct. App. 1995).

As a general statement, “changed circ umstances” include any material change of circumstances affecting the welfare of the child including new facts or chang ed conditions which could not be anticipated by the former decree. Dalton v. Dalton , 858 S.W.2d 324, 326 (T enn. Ct. App. 1993). As with decisions making the original grant of custody, the decisions turn on the unique facts of eac h case, andthere is no exact r ule for determini

ng when a chang

e of circumstanc

es is material enough to trigger proceeding with a best interest analysis regarding a modification of the existing custody arrangement. Taylor v. Taylor , 849 S.W.2d 319, 327 (Tenn. 19 93); Solima v. Solima
, 7 S.W.3 d 30, 32 (Tenn. Ct. App. 1998). However, the change must involve the child’s circumstances rather than either or bo th parents. Hoalcraft v. Smithson , 19 S.W.3d at 829. Additionally, the changed circumstances must affect the child’s well-being in some material way. Id
., Dalton , 858 S.W.2d at 326.

Because a finding of a

material chang

e in the child’s cir

cumstances is a r

equisite threshold determinatio

n, Placencia v. Plac

encia , 48 S.W.3d 732, 736 (Tenn. Ct. App. 2000), we begin our review with the trial court’s findings in that regard. The court below specifically found

that the child5 We interpret the language of

this holdi

ng as a findi

ng that cir

cumstances had

developed that negat

ively af fected the well-being of the child in a m aterial way. See Ho alcraft
, 19 S.W.3d at 830 (“[T ]he correct inquiry was whether the childred would be har

med in any way i

f [the cust

odial parent] r

etained cust

ody.”)

6 The record does n

ot incl ude orders f

rom this proceeding, but the parties testified about it, includ ing Moth er’s admissi on that she had

been ord ered by the J uvenile Court of Montgomery County to return Mary’s personal belonging to her in 199 7.

7 would be in substantial harm if left with Mother. 5 The court listed several reasons or factor s t hat constituted harm to the child including the conduct of Mot her’ s hu sba nd t owa rds Mar y; the Mother’s failure to meet the child’s needs with regard to school and medical and den tal care; and Mother’s unwillingness to allow an unimpeded relationship between the child and his father.

Much of the relevant

evidence in this case was disputed at trial. For example, the nature of the strife between Mother’s daughter Mary and Mother ’s new husband, is described differently by Mary andby Mother. Mary testified that her step-f ather had abused her

by throwing

her against a walland, on another occasion, he dragged her up the stairs by her hair and bra strap and then hit her twice and threw her head

int o th e hea dbo ard o f her bed . Ap pare ntl y, there were sev eral altercati

ons. In 1995 or 1996, Mary

came to live with

Father, after the first episode of physical violence. Mother relinquishedtemporary

custody of Ma

ry to Fathe

r at that time. Mar

y liv ed with Father for approximately

six months before returning the Mother’s house. In 1997, Mar y a gain left her Mother’s house, apparently because of another alterca tion, and returned to Father’s house. Mary stated that after the physical altercations in the fall of 1997 she did not feel safe living in her Mother’s house. Father’s wife, Marty Roac he, drove to Missou

ri, took Mary

to the emergency room for treatment of bruises, and returned home with her.

Mother disputes Mary’s testimony, claiming that neither she nor her husband

had physica

lly abusedMary. She c

laimed that Mary

was the aggr

essor in the first i

ncident. The second incide nt, which Mother b lam ed on Mary’s drug use, resulted in a phy sical altercation between Mary and Mot her, and whe n th e st epfa the r le arne d of it, he w ent ups tai rs t o de al w ith Mar y.
Mary had lived with Father and his new wife for the three years preceding

the hearing. Her grades drasticall y improved afte r moving int o his home, and she has b een attendi ng A ustin Peay StateUniversi

ty at the e ncouragement of Father. After Mary returned to Father’s home, Mother at tempted to regain custod y of Mary through court a

ction, but she was u

nsuccessful. 6 It was t

hi s 1997 court battle, which apparently resulted in a court ruling giving c ustody of Mary to Father, who

was not her biological parent, which Father says trig gered Mother’s lack of cooperation in his efforts to visit and communicate with his son.
Mary testified that

the incidents of physical

violence occurred in the presence of Mother but that the child was in his roomat the time. Mother argues the son was unaffected by these inc

idents; Father asserts son was aware of them and anxious because o f the m. The testimony regarding Mother’s new husband’s physical as saults on Mary involved incidents

occurring before 1997, and Father was aware of the incidents when they happened. Yet, he

waited until January of 1999 to seek7 The parties have disputed whether Mother g ot notice of t

he Tennessee co urt o rder regar ding the 1998 Christmas vi sitati

on and whether

Father had Mother’s correct address. They also dispute when she had notice Father was coming to get the child and why she took the child to work wi

th her the day

Father was to pi

ck him up. The tri

al
court made it clear, however, that it s concern was that Father only got fi ve days of visitati

on then although he should have gotten more to make u

p forthe previou s Christmas. M other ackn owledge d that it was her objections and opposition tha

t resulted in the C hristmas Eve order giving Father five da ys.
8 a chan ge of cus tod y. A s a result of Mary’s move to his house, Mother’s animosity to Fa ther apparently

increased and

she attempted to int

erfere with his

relationship with h

is son. His inability to see his son for long periods of time may have increased his an

xiety about his

son’s situation, so that a combinat ion of circu mstances l ed him to se ek a change of custody. While we do not discount Father’s concern over

the treatment of Mary

by Mother’s new husband, we note there is no evidence that the son was ever treated in a similar manner.

There are, however, additional allegationsof changed circumstances. Change of custo dy is notappropriate as a

method to

punish a parent for failing to comply with court orders rega rding visitation. Adams v. Cooper , No. M1999-02664-COA- R3-CV, 2000 WL 22

5573, at *7 (Tenn.

Ct. App. Feb. 29, 2000) (no Tenn. R. App. P . 11 application filed). However, a custodial parent’s actions which interfere with the relationship between the child and non-custodial parent may constitute a material change of circumstances. At the tim e of t he i nit ial gran t of cus tod y, the court andthe parties anticipate that the custody and visitation arrangements will be complied with. The initial custody arr

angement is inte

nded to enhance t

he child’s relati onship with each pa rent. Adelsperger
, 970 S.W.2d at 484. Both the courts and the legislature have recognized the importance to the child’s well- being of maintaining a relationship with the noncustodial parent. Wilson v. Wilson
, 987 S.W.2d 555, 564 (Tenn. Ct. App. 1998); Tenn. Code Ann. § 36-6-106(10) (Supp. 2000). A custodial parent’s obstruction of the noncustodial parent’s visitation rights o r conduct to

preclude continuation of the parent-c hild relationship is

a sufficient cha

nge of circumst

ances to w arrant furthe r consideration of a change of custody. Wilson v. Tittle , No. M2000-00115-COA-R3-CV, 2000 WL 1207247, at *2, 4, 6 (Tenn. Ct. App. Aug. 25, 2000) ( perm. App. denied

Mar. 12, 2001).

Mother herein characterizes the post-1997 incidents as “a couple of glitches in visitation.” Because we do not agree with that characterization, we need not address the issue of whether such “glitches” can constitute

a material change of

circumstances. Whether a custodial parent’s conduct has obstructed communication between t he chil d and the noncustod ial parent so as to

constitute interference

with or attempt to da

mage the pare

nt-child relation

ship is, ultimately, a question of fact to be determined in the context of a particular case.

The trial court found that

Mother was not willing to allow a relationship between Father and his son and th at Mother did not re cognize the impor

tance of a close

and continuing r

elationship between the child and Father “even though she acknowledges that he is a good father.” The court also found that Mother had not allowed Father to see his son at Christmas 1997, and because of her actions Father got to see his son for onl y five days during the 1998 Christmas school bre ak even though the court had intende d him to get extende

d visitation to

make up for the lost 1997 visitation. 7 The court also found that Mother admitted that she insisted that Father take both his own child and8 Although Mary has l ived with Fat

her for thre

e years, sh

e has had visi

ts with Mother i

n Mother’s home.

9 the child’s half

brother for summer visitation in 1999 or she would not allow the visitation. Father andhis current wife

testified that Moth

er made Father

’s exercise of his v

isitatio n rights more difficult after Mary

came to live with them. Fat

her testified tha

t telephone commun

ication with his

son had been made more difficult or obstructed by Mother since the 1997 court ac

tion giving him custody of M ary. The only way he could rea ch his son was to have Mary call first and ask to speak to the child then put Father on the phone.

The trial court also found that the child’s school

, medical, and dental needs were not being met by Mother

. There was testimony by Fathe r that when he got his son one summer, he had ringworm on his head which r

equired medical

attention. Furthe

r, on one occasio

n the child complainedof headaches and upon an ey e exam, it wa s discovered that he needed a new prescription. Finally, Mother admitted that the child had needed braces for two years and

, despite Father’s insurance paying $1,500 of the approximate $3,000 costs, and Father’s offer to pay half of anything not covered by insurance, the child still did not have braces at the time of the hear ing. Mary testified that while she lived with Mother nei ther she nor Father’s son had visited the doctor or dentist regular ly. We note that a neglect of general dental needs has been deemed a material c hange of circum stances. Baker v. Baker , No. W1999-02660-COA-R3-CV, 2000 WL 1346650, at *1-2 (Tenn. Ct. App. Sept. 15, 2000) (no Tenn. R. App. P. 11 a

pplication filed)

(finding that the

inability of a parent to pro perly

care for a chil

d, as evidenced b

y neglec t of the child’s de

ntal needs, was a serious change of circumstancesand that the initial custody arrangement necessarily contemplated the custodial parent would provide for the child’s basic needs).

Fin all y, Father noticed his son had problems reading and was doi ng po orl y i n school. According to Mother, the child failed some quarters of a course or two, and had been required to attendsummer

school in 1999. Mother testified, however, that she helped her son with homework andwas actively

involved with

the child’s resource teacher in addressing his needs. On the other hand, Mary testified that no one helps the child with

his homework on the

times she has visite

d in Mother’s home. 8
The evidence does not preponderate against the trial court’s finding that a material c hange of circumstances has occurred which affe ct the chil d’s welfare. Th erefore, the c

ourt properly proceeded to consider whether a change of custody was in the child’s best interest.

III.

If a material change in circumstances is found, then the courtseeks to devise a custody arrangement

that is in the best interest of the child. Varley v. Varley , 934 S.W.2d 659, 665-66 (Tenn. Ct. App. 1996) (citing Koch v. Koch , 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993)); Tenn. Code Ann. § 36-6-106 (Supp. 1998). The party seeking a change in custody has the burden of proving by the preponderance

of the evidence that a change of custody is in the child’s best interest. Musselman

v. Acuff , 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991). “In child cus tody cases,

the welfare an

d best10

interest of the children are the paramount concern and the determination of the children’ s best interest must turn on the particular facts of each case.” Akins v. Akins , 805 S.W.2d 377, 378 (Tenn. Ct. App. 1990) (citing Holloway v. Bradley , 190 Tenn. 565, 570-72, 230 S.W.2d 1003, 1006 (1950)). In determining wha

t is in the best inter

est of the child, the court is to asse ss the comparativ

e fitness of the parties in light of the particular circumstances of the case. Ruyle v. Ruyle , 928 S.W.2d 439, 442 (Tenn. Ct. App. 1996); Matter of Parsons , 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995). “There

are literally thousands of things that must be taken into consideration in the lives of young children, andthese factors must be reviewed on a comparative approach.” Bah v. Bah , 668 S.W.2d 663, 666 (Tenn. Ct. App. 1983) (internal citations omitted).

The trial court

herein conducted a comparative fitness analysis using the fa ctors enumerated in Tenn. Co de Ann. § 36 -6-106(a), which incl ude the foll owing:
(1) The love, affection and emotional ties existing between the parents and child; (2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver; (3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment . . . . (4) The stability

of the family

unit of the parent

s; (5) The mental an

d physical he

alth of the paren

ts; (6) The home, school and community record of the child; (7) The reasonable preference of the child if twelve (12) y ears of age or older. (8) Evidence of physical

or emotional abuse to the child, to the other parent or to any other person . . . . (9) The character and behavior of any other person who resides in or fre quents the home of a parent and such person’s interactions with the child; and (10) Each parent’s past and po tential for future performance of parenting responsibilities,

including the will

in gness andability of ea ch of the parents

to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

After discussing most of these factors in a comparative context, the court found that it was in the child’s best int

erest that primary physical custody be changed to the Father. Specifically, the court found, while most things were equally applicable to both paren ts, that Fa ther’s attitude to providing for the child’s food, clothing, medical care, etc. was greater; the envir onment with Mother

was not stable conside

ring the abuse to

Mary by the step-father

; the child’s school record was waning in the care of Mother and

in contrast, Mary’s school record drastically improved once she was placed in Father’s care; and Mother “does not recognize the importance of a close a nd con tinui ng relationship

betweenthe child and [Father] even though she acknowledges that he is a good father.”11

We find the evidence

does not preponde

rate against the court’s finding that the c hild’s best interests are served by the modified c ustody arrangem ent ordered by the court. Th erefore, chan ge of custody is affirmed.

IV.
We affirm the judgment of the trial court andremand thi s case for any fur ther proceed ings which may be required. Costs of this appeal are taxed against appellant, Justine Bourisaw, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ PATRICIA J. COTTRELL, JUDGE