### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON May 1, 2001 Sess

ion
ROBERT KEITH RICHARDSON v. DEB ORAH ETTA RICHARDSON

A Direct Appeal from the Circuit Court for Shelby County No. 150511-7 Robert A. Lanier, Judge

No. W2000-02374-COA-R3-CV - Filed June 14, 2001

D AVID R. F ARMER , J., concur ring.

I concur in the result reached by the majority opinion. However, I w rite separately

to express my concernwith the language in the opinion to the effect that a change of circumstance s substantial to warrant a change of custody require s a chan ge to prev ent substantial harm to the child. I acknowledge that this language appears in Wall v. Wall, 907 S. W.2d 829, 834 (Tenn. Ct. App. 1995), an opinion of the middles section of this court. However, I further note that Wall cited Contreras v. Ward , 831 S.W.2 d 288 (Tenn. Ct. App. 1991). Contreras was a parental relocation
case which stated the long recognized rule that “the best interest and welfare of the child must be the primary focus of attention.” Contreras , 831 S.W.2d at 290.

In Musselman v. Acuff

, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), the eastern section of this court noted that the paramount consideration in custody proceedings is the best interest of the child and that, when theissue is whether to modify a prior custody order, the court need not repeat the co mparative f

itness analysis set forth in Bah v. Bah , 668 S.W.2d 663 (Tenn. Ct. App. 1983). Instead, the trial court in a modification proceeding must find a material ch ange in circumstances compelling enough to warrant the dramatic remedy of changed custody. The court went on to say that “[i]t is only that behavior of a parent which clearly posit s or causes danger to the mental or emotional well-being of a child (whether

such behavior is im

moral or not), whic

h is sufficient bas

is to seriously

consider the drastic legal action of changing custody.” Musselman , 826 S.W.2d at 924 (quoting Ballard v. Ballard , 434 So. 2d 1357, 1360 (Miss. 1983)).

Our supreme court re

cently addr

essed the standar

d to be applied in

modifying a child custody decreein Aaby v. Strange , 924 S.W.2d 623 (Tenn. 1996). Aaby , which al so dealt with parental relocation, cited Musselman for the proposition that “Tennesseelaw allows custody to be changed if the behavior of the custodial parent clea rly posits a danger to the physical, mental or emotional well-being of the child.” Aaby , 924 S.W.2d at 629-30 (emphasis added).-2-

The eastern section of this court subsequently has interpreted Musselman and Aaby to mean that “[t]he Musselman/Aaby test requires more -- we mustfind ‘beh avior . . . [that] clearly posits
a danger’ to the children.” Rector v. Rector , No. 03A01-9604-CV-00123, 1996 WL 539767, at *4 (Tenn. Ct. App. Sep

t. 25, 1996) (empha

sis added). I

do not interpret Aaby , however, to hold that, “inorder to be compelling enough to warrant the dramatic remedy of changed cust ody, the change of circumstances must be such that continuation of the

adjudicated cust

ody will substa

ntially harm the child.”

Ci ti ng Wall , the western section of this court has held that a custody decision is not changeable

except for change of

circumstances,

which is defined a

s that which requir

es a change to prevent substantial harm to the child. William s v. Wil liams , No. 01A0 1-9610-CV -00468, 19

97 WL 272458, at *6 (Tenn. Ct. App. May 23, 1997); Greene v. Greene , No. 03A01-9503-CV-00091, 1996 WL 165098, at *4 (Tenn. Ct. App. Apr. 9, 1996). This section also has cited M uss elman for the propo sition that “[i]t is only that behavior of a parent which clearly posits or causes dang er to the mental or emotional well- being of a child

(whether such be

havio r is immor al or not), which is sufficient basis to seriously consider the drastic legal action of chang ing custody.” William

s , 1997 WL 272458, at *6 (emphasis adde d). I acknowledge that I have c oncurred in previous decisions containing the foregoing language, but upon further reflec tion, I believe the better standard is as set forth in Stroud v. Stroud

, No. 01A01 -9607-C H-00291, 1997 WL 266846, at *1 (Tenn. Ct. App. May 21, 199 7), whe rei n th is c our t sa id “ [c] ust ody may be changed if the behavior of the custodial parent clearly posits a danger to the physical, mental, or emotional well-being of the child.” Stroud , 1997 WL 266846, at *7 (emphasi s added) (ci ting Aaby v. Strange , 924 S.W.2d 623, 62 9 (Tenn

. 1996)).

Section 36 -6-101( a)(1) of the T ennessee Co de Annotat ed empowers the courts to change custody “as the exigencies of the case may require.” The middle

section of this cou

rt stated recen

tly that: “T he courts will change a custody or visitation arrange ment if the party seeking the cha ng e proves (1) that the child’s circumstances have changed materially in a

way that co

uld not reasonably have been foreseen

at the time of the originalcustody decision, see Smith v. Haase , 521 S.W.2d 49, 50 (Tenn. 1975); McDaniel v. McDani e l , 743 S.W.2 d 167, 169 (Tenn. Ct. App. 1987)[ modified , 1987 WL 15543, at *1 (Tenn. Ct. App. Aug. 7, 1987)], and (2) that the child’s interests will be better served by changing the existing custody or visitation arrangem ent. See Hall v. Hall , No. 01A01- 9310-PB-00465, 1995 WL 316255, at *2 (Tenn. Ct. App. M

ay 25, 1995)

(No Tenn. R. App. P.

11 application filed).” Soli

ma v. S olima , No. 01A01-9701-CH-00012, 1998 WL 726629, at **2-3 (Tenn. Ct. App. Oct. 16, 1998).

As Professor Gar

rett states:
Before custody is changed, the trial court will engage in a two step procedure. First, the trial j udge must find an unanticipated significant change of circumstances suffic ientto c hange custody. Second, the trial court will engag e in a comparative fitness examination to determine which custodial setting will be most beneficial for the child.-3-

W. Walton Ga rrett, Tennessee Divorce, Alimony & Child Custody § 26-4 (2000 ed.) (footnotes omitted). I recognize that Professor Garrett further states, “[m]ost of the appellate

opinions require
a finding of changed circumstances which indicate a substantial risk of harm to the child’s emotional
or physical well being.” Id . He further lists some

37 criteria upon which our courts have based modification of child custody decrees. Id . § 26-5.

I am concerned that we have created too harsh a standard by holding that a

change of custody will be granted only upon a showing that a continuation of the adjudicated cust

ody will substantially harm the child. Harm is defined as “physical or mental damage.” Webster’s Ninth New Collegiate Dictionary554 (1990). I can envision circumstances in which there is determined to be a material change of circumstances which would indicate that a change of cu

stody is in the

child’s best inter

est, butwould fall short of a

continuation of the adjudicated cust ody resultin

g in “substantial

harm” to the child.

____________________________________ DAVID R. FARMER, JUDGE