### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decemb er 12, 2001 Session JOHN KEVIN POORE v. SONYA J OYCE POORE Direct Appeal from the Chancery Court for Hamblen County No. 2000-247 Hon. Thomas R. Frierson, II., Judge

FILED FEBRUARY 5, 2002 No. E2001-01250-COA-R3-CV

In this custody dispute, the Trial Court awarded custody of the children to the father who was not the biological parent of one of the children. We va cate the Judgment as to that child and remand with instructions to apply the correct analysis of the evidence as to the custody of the child.

Tenn. R. App. P.3

Appeal as of

Right; Judg

ment of the Chancery

Court Af

firmed in Part and Vacated in Part.

H E RSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Leslie Ric

hard Hun t, Clinton, Tennesse e, for A ppellant

. Edward R. Sempkowski, Morristown, Tennessee, for Appellee.

OPINION

In this divorce action, the Trial Court granted custody of three minor children to the husband, and wife

has appe aled and

raised th ese issue s: 1. Did

the Tria l Court viol ate wife ’s const itu tional rights when it granted parental placement of the wife’s child to the husband who is not

the child’s natural father , without a

finding of substa ntial har m to the child

if place d with the wif e? 2. Did

the trial court abuse its discretionwhen it designated the husband as the-2- primary re sidential parent of the parties two biological children? After this action was filed, a hearing was held and te mporary c

ustody of the three children was awarded to the husband. Subsequently , at trial, the parties stipul ated that they had participated

in DNA testing which showed that husband was not the biological father of the midd

le child. At the conclusion of proof, the Trial Court found that one of the child ren was conceiv ed as a result of an affair, but that neither parent had made any

distinctio n in his or h

er love a nd suppor t in caring for this child. The C ourt fur ther fou nd there were str ong bond s b etween the siblings, that keeping the siblings together would promote the best interest of the children, and further that the best interest of the child ren woul d be served by

making the husband the primary residential parent. The Court then

ordere d the wife

to pay child supp ort. The Court, in making the custodia l award, utilized the

compara tive fitne ss analy sis, and made no distinction between the husband’s biological children and the other child. The law of our State is clear, however, that different legal standards are applicable to custody

disputes between two biologic al pare

nts, and di sputes be

tween a biologic al pare

nt and another. As t

his C ourt ha s previously explained:

The compara

tiv e fitne ss analysis commonly associated with custody disputes betwee n biologi cal par

ents cannot be used because it fails to take into account that the custody claims of biologic al parents and the custody claims of third parties do not have the same

legal w eight. A biological parent’s custody claims carry

more weight than tho se of a third party because only biologic al pare

nts have a

constituti onally protected interest in raising their children. A biologic al pare

nt’s inter est in the c are, cu stody , and con trol of hisor her child

is among the oldes t of the jud icially recog nized fund amental l iberty i nterests . It is protected not only by t he Due Pr ocess Cla use of the Fourtee nth Amendment, but

also by Tenn. Con st. art. I , §8. Acc ordingl y, b iologic al pare

nts have a

consti tutional ly protected interest in raising their children free from unwarranted state intervention. * * * Persons who are not a child’s biological parent do not hav e the sam

e constitu tionally pr otecte d parenting interests possessed by a biological parent. According ly, when faced wi th co mp et in g c us to dy c laims by a b iological parent and a third party , the courts must favor the biological parent. The courts cannot awa rd custody to a third party instead o f a biolog

ical par ent unles s th e third party c an demonstrate that the child will be exposed to substantial harm if custody is awar ded to the biological parent. In other words, a biolog ical parent cannot be denied custody unless he or she is found to

be unfit. Ray v. Ray , 2001 Ten

n. App. L EXIS 746 (Ten

n. Ct. App. Oct. 5, 2001)(citations omitted). See also-3-

In re Askew , 993 S.W.2d 1 (Te nn. 1999) ; Bond v. M

cKenzie , 896 S.W.2d 546 (Tenn. 1995); Petrosky v. Keene , 898 S.W.2d 7 26 (Tenn . 1995); Henders on v. Mab ry , 838 S.W.2d 537 (Te nn. Ct. App. 1992); Moore v. Moore , 1998 WL 758995 (Tenn. Ct. App. Oct. 30, 1998).

In this case, the Trial Court was required to make a determination whethe r the child would be exposed

to substan

tial harm if custod y w as awar

ded to wife, the biologic al pare nt. The Courtpretermitted this issue, and engaged in a compa

rative f itness analysis, as noted. Dur ing the trial, the husband’s attorney attempted to elicit testimony reg arding alleged questionable c onduct of the wife, but t he Court refused to allow this testimony, and g ave the reason that he’d heard such testi mony at t he tem porary cus tody heari ng.

Since the Trial Court did not address the substantial harm question and applied the incorrect standard regarding the

custody of this child, we

vacate the Trial Court’s Judgment as to the custodial award of this child, and remand for the Trial Court to hear

further evidence on this issue and make a determination consistent with the standard set forth in this Opinion.

The wife argues that the Trial Court should have aw arded her residential custody

of th e parties’ other two

childre n. Our sta

ndard of review o f the initi al custod y de terminat ion is “ de novo upon the record of the Trial Court, accompanied by a presumption of correctness of the finding s, unless the preponderance of the evidenc e is otherwise.” Hass v. Knighton , 676 S.W.2d 554 (Tenn. 1984). Moreover, because custodial decisions are factua lly based and ofte

n are determined by the credibility of the

witnesses, we are hesitant to reverse the trial c ourts’ decisions because the trial judge was present and could observe the witnesse s and judg e their credibility. Adelsperger v. Adelsperger , 970 S.W.2d 482 (Tenn. Ct. App. 1997). Considering the factors enumerated in Tenn. Code Ann. §36-6-404(b) as the trial court expressly di d in i ts custody determination, we f ind the evidence supports the Trial Court’s grant of custody of the two children to the father. The Trial Court found that both parentshad “loving, af

fection ate and e

motional ti es” withthe children, and that both could provide the children with food, clothing, educ ation, and other necessi ties. The Court

found tha

t husband w orked the

night shi ft, but en

joy ed the be

nefit of h is parents caring for the childre n while he worked. The Court found that the oldes t child did

well in school and maintained regular attendanc e, also that the husband had served as the primary ca

re giver during the parties’ separation, and further that a “healthy

rapport” existed between the children and husband’s parents. The evidence supports these findings. The proof showed that the children had thrived while in hu sband’s c are, and were w ell-car ed for a nd seemin gly

had all of their n eeds met

. The evidenc e preponderate s that the h usband wa s th e more stab le of the two pare nts, and th at his homewould be a

sui table place for the children to have the sec urity and continuity

they needed. There was no proof that husband did any thing but encourage the children to have a relation ship with their mother and we find that the evidence preponder ates in favor of the custodial award of the two children to the father.

The Judgment of the Trial Court is affirmed in part, vacated in part, and t he caus e remanded with the cost of the appeal assessed one-half to John Kevin Poore and one- half toSo nya-4-

Joyce Poore.

_________________________ H ERSCHEL P ICKENS F RANKS , J.