IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 20, 2009 Session

CYNTHIA DIANE FREE v. JAMES JASON FREE, ET AL.

Direct Appeal from the Chancery Court for Henry County

No. 18990 Ron E. Harmon, Chancellor 

No. W2008-01329-COA-R3-CV - Filed February 17, 2009

This is a post-divorce action seeking a change in child custody. The initial action was filed by the

natural mother, the Appellee herein, and the trial court determined that primary residential custody

should be with her. The paternal grandparents, the Appellants herein, also moved the court for

custody of the two minor children. The trial court denied the grandparents’ petition for custody. The

grandparents appeal. Finding no error, we affirm.

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

J. STEVEN STAFFORD, J., delivered the opinion of the court, in which DAVID R. FARMER, J., and

HOLLY M. KIRBY, J., joined.

Larry J. Logan, McKenzie, TN, for Appellants, James Jason Free, Hank Stanfield and Frankie

Stanfield 

James H. Bradberry, Dresden, TN, for Appellee, Cynthia Diane Free

OPINION

Appellee Cynthia Diane Free and James Jason Free were divorced by order of the Chancery

Court of Henry County on April 9, 2003. On August 10, 1997, two children were born to the

marriage–twin girls, J.L.F. and J.A.F. Concurrent with the order of divorce, the trial court entered

a Permanent Parenting Plan, naming Mr. Free as the primary residential parent, and giving Ms. Free

visitation with the children. Following the divorce, Mr. Free moved into the Appellants Hank and

Frankie Stanfield’s home. Frankie Stanfield is Mr. Free’s mother; Mr. Stanfield is his step-father.

Although the exact date is not clear in the record, at some point, Mr. Free moved from the Stanfields’

home, leaving the two children in the Stanfields’ care.

On October 16, 2006, after Ms. Free discovered that her ex-husband had moved from the

home and left the children in the care of the Stanfields, Ms. Free filed a petition to modify the
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previous child custody order, requesting that she be named primary residential parent. Mr. Free then

filed a motion to dismiss Ms. Free’s petition. By Order of May 16, 2008, the trial court granted Ms.

Free’s petition and named her the primary residential parent of the children. 

On August 8, 2007, the Stanfields intervened and petitioned the court for custody of the

children. In their petition, the Stanfields alleged that Ms. Free was living with a registered sex

offender, that she repeatedly failed to supervise the children, and that her treatment of the children

posed a substantial risk of physical and emotional harm. Following a hearing on February 19, 2008,

the trial court denied the Stanfields’ petition for custody.

The Stanfields and Mr. Free appealed this decision; however, at oral argument, counsel for

Mr. Free informed the Court that his client no longer wished to pursue the appeal. Consequently,

the Stanfields are the sole appellants herein. The issues, as stated in their brief, are as follows:

1. Was there a material change in circumstances, occurring

subsequent to the initial custody determination, sufficient to change

the designation of the primary residential parent from James Jason

Free, the natural father, to Cynthia Diane Free, the natural mother?

2. Were the actions of the natural mother, Cynthia Diane Free, and

her family sufficient to cause the presumption of superior parental

rights to be forfeited?

3. If so, does the evidence justify a change of custody to the paternal

grandparents, Hank Stanfield and wife, Frankie Stanfield?

We note that, because Mr. Free is no longer a party to this appeal, we pretermit issue one,

which contests the custody award to Ms. Free. The sole issue before this Court is whether the trial

court erred in denying the Stanfields’ petition for custody.

Because this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. Unless

the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R.

App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the

truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses and their

manner and demeanor while testifying is in a far better position than this Court to decide those

issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker,

957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness'

testimony lies, in the first instance with the trier of fact, and the credibility accorded will be given

great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959

(Tenn.1997).

The Stanfields petitioned the court for custody of the children. Based upon the evidence, the

trial court denied their request. As discussed in Richards on Tennessee Family Law:
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[E]ven though the best interest of the child is the paramount concern

of the court in making custody determinations, a constitutional right

of privacy arises when the custody dispute is between a natural parent

and a third party. In a series of recent cases, the supreme court has

made clear the rule that in a custody dispute between a third party and

a natural parent, the parent may not be deprived of custody without

a showing of parental unfitness or a showing of substantial harm to

the child. The supreme court reaffirmed the doctrine of superior

parental rights in Blair v. Badenhope as follows:

Through Article I, section 8 and its implicit

recognition of parental privacy rights, our

Constitution requires that courts deciding initial

custody disputes give natural parents a presumption of

''superior parental rights'' regarding the custody of

their children. Simply stated, this presumption

recognizes that ''parental rights are superior to the

rights of others and continue without interruption

unless a biological parent consentsto relinquish them,

abandons his or her child, or forfeits his or her

parental rights by some conduct that substantially

harms the child.”

 Janet L. Richards, Richards on Tennessee Family Law § 8-(3)(b)(8) (3d ed. 2008) (footnotes

omitted). 

The trial court specifically found that Ms. Free’s parental rights were paramount to those of

the Stanfields. In order to overcome that finding, the record must contain proof that Ms. Free is

either unfit, or that she poses a substantial risk of harm to the children. We have reviewed this

record, and find no evidence to support either of these conclusions.

The Stanfields’ primary objection to Ms. Free’s being named the custodial parent seems to

be the fact that she dated a registered sex offender. Although Ms. Free does not deny having a brief

relationship with this man, the record indicates that, at that time, Ms. Free had no knowledge of his

status as a sex offender. Moreover, the record indicates that the relationship between Ms. Free and

this man was never serious, that the children were never unsupervised with him and, more

importantly, as soon as Ms. Free was informed that this man was a sex offender, her response was

exactly as it should have been–she stopped seeing him immediately. There is no indication that Ms.

Free is currently seeing this man, or that she has any plans to resume a relationship with him in the

future.

The Stanfields also rely upon the fact that, in 2003 (when the children were five years old),

Child Protective Services of Kentucky received a report that Ms. Free’s mother had physically

abused one of the children by hitting her with a belt. This investigation was considered by the trial
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court, which ordered that the children’s visitation with Ms. Free be supervised by Ms. Free’s sister.

The mandate for supervised visitation was lifted by the trial court in 2005. There is no indication

in the record that Ms. Free failed to comply with the supervised visitation. Furthermore, the report

from the Kentucky Child Protective Services indicates only that Ms. Free’s mother overreacted in

her punishment of the child; there is no finding that Ms. Free was abusive. It appears from the

record that this was an isolated event. There have been no further investigations of Ms. Free or her

family, nor were there any proven incidents prior to this. 

This court addressed this same issue in Elmore v. Elmore, 173 S.W. 3d 447 (Tenn. Ct. App.

2004). In Elmore, now Justice Sharon Lee wrote the following:

In a contest between a parent and a non-parent, a parent cannot be

deprived of the custody of a child unless there has been a finding,

after notice required by due process, of substantial harm to the child.

Only then may a court engage in a general "best interest of the child"

evaluation in making a determination of custody.

In Re Adoption of Female Child (Bond v. McKenzie). 896 S.W.2d at 548. 

Further, this Court has held that the required showing of risk of

substantial harm to the children must be demonstrated by clear and

convincing evidence. Ray v. Ray, 83 S.W.3d 726, 733-34 (Tenn.

App. 2001); Hall v. Bookout, 87 S.W. 3d 80, 86 (Tenn. App. 2002);

Henderson v. Mabry, 838 S.W. 2d 537, 540 (Tenn. App. 192).

As the Supreme Court discussed in Blair v. Badenhope, 77 S.W.3d

137 (Tenn. 2002),the applicable analysis is somewhat different when

a natural parent is seeking to modify a valid order granting custody to

a non-parent. But [**6] in the present case, there is no prior decree

granting custody to a non-parent, and so the Grandparents and Aunt

were required to make a showing, by clear and convincing evidence,

that granting custody to Father subjected the children to a risk of

substantial harm.

Elmore at 449

In order for the Stanfields to prevail they were required to show by clear and convincing

evidence that allowing Ms. Free to have custody of the children subjected them to a risk of

substantial harm. Our review of the record reveals they failed to meet their burden of proof.

Based on the foregoing, we affirm the decision of the trial court. The costs of this appeal are

assessed against the Appellants, Hank and Frankie Stanfield, and their surety.
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_______________________________

J. STEVEN STAFFORD, J.