IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 20, 2010 Session

 IN RE MADISON N.J.M.

Appeal from the Circuit Court for Knox County

No. 112305 Bill Swann, Judge

No. E2009-01625-COA-R3-JV - FILED JUNE 28, 2010

This is a case involving the custody of a minor child, Madison N.J.M. (“the Child”). The

Child lived with her mother, K.S. (“Mother”), until she was four. After the Child was

1

adjudicated dependent and neglected, she was placed in the temporary custody of her

maternal grandmother, L.R. (“Grandmother”). Grandmother latersought permanent custody.

A paternity suit was filed and it was ultimately determined that C.A.M. (“Father”) is the

Child’s biological father. Soon after paternity was established, Father entered into a

mediated agreement which provided that Grandmother would remain as the Child’s primary

caregiver with parenting time for Father. A final order adopting the terms of the mediated

agreement was entered and Grandmother was granted custody of the Child. Father actively

pursued a parental relationship and increased time with the Child; he later sought full

custody. Following a bench trial, the juvenile court ordered a change of custody from

Grandmother to Father based upon its finding of a material change in circumstances and its

determination that custody with Father is in the best interest of the Child. On appeal de novo

to the trial court, the judgment was affirmed. Grandmother appeals. We also affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

CHARLES D. SUSANO, J., delivered the opinion of the Court, in which D. MICHAEL SWINEY

and JOHN W. MCCLARTY, JJ., joined.

Brandy Boyd Slaybaugh, Knoxville, Tennessee, for the appellant, L.R.

Wayne Decatur Wykoff, Knoxville, Tennessee, for the appellee, C.A.M.

During the proceedings below, Mother twice petitioned for custody of the Child. Both petitions 1

were dismissed. Mother did not challenge the final order and is not a party to this appeal. 
OPINION

I.

The parties stipulated the findings of fact as set forth in the final order of the juvenile

court referee. The relevant facts and procedural history of this litigation follow.

2

The Child was born to Mother in July 2000; at the time of the final hearing in this

matter she was eight. When the Child was born, Mother was legally married to one man (not

Father) but living with another – her boyfriend, R.S. Father and Mother had dated for a few

months in 1999. According to Father, he ended their relationship when he learned that

Mother was married. Father later learned from a friend that Mother was pregnant but, being

aware that Mother was married and seeing other men besides himself around the time of

conception, he did not pursue a paternity determination. As a result of a paternity action filed

by Mother, Father learned in 2005 that he was the Child’s father. Shortly after his paternity

was determined, Father married T.M. (“Stepmother”).

In January 2005, Grandmother became the Child’s primary caregiver when Mother

stopped having regular contact with the Child. Mother left the Child and some of her

siblings with Grandmother and went to live with R.S., with whom she had three children.

Mother has a total of nine children including the Child. Three lived with their biological

fathers, three, including the Child, lived with Grandmother, and three lived with Mother and

R.S., their biological father. On January 11, 2005, Grandmother initiated the present case

by filing a petition to declare the Child dependent and neglected and moved for custody of

the Child. The petition, also signed by Mother, indicated that Mother was unemployed and

unable to care for the Child. On that same date, the court entered an order granting

Grandmother temporary legal and physical custody of the Child. Shortly thereafter, a petition

to establish paternity was filed. Father was named as a defendant. While the Child was in

her custody, Grandmother continued to exercise all decision-making and financial

responsibility for her without assistance from Mother. Grandmother maintained private

schooling, family counseling, and individual professional therapy for the Child for the

separation anxiety the Child experienced when Mother left her with Grandmother. Ms.

Cookie Oakley, a licensed clinical social worker, became the Child’s therapist. Ms. Oakley

was also Grandmother’s long-time therapist, having initially provided Grandmother with

counseling for her own, unrelated employment matters since 2000 before she began working

with the Child and her siblings in Grandmother’s care.

Accordingly, no hearing transcript or statement of evidence is included in the appellate record; as 2

with the circuit court and the parties, we rely on the extensive factual findings of the juvenile court referee

stipulated to by the parties. 

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After paternity was established, Father began visiting the Child and paying child

support. At the outset, the child support referee directed that Father would have supervised

visitation with the Child, to be followed in short order by unsupervised visits. Ms. Oakley,

however, did not agree with the referee’s order and recommended that Father’s time with the

Child cease as of May 2005, pending an evaluation of Father and his circumstances and

Father’s attendance at family counseling sessions. In June 2005, at the request of the Child’s

guardian ad litem, Grandmother, Father, and Mother were referred to mediation concerning

Father’s parenting schedule and Grandmother’s pending petition for custody. The parties

reached a mediated agreement filed on June 29, 2005, which provided that Grandmother

would remain the Child’s primary caregiver. In addition, Father would have a two-hour visit

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with the Child each weekend to commence when recommended by Ms. Oakley. Father’s

schedule with the Child would progress as directed by Ms. Oakley and overnight time with

the Child would only begin under her recommendation. Further, all of Father’s time would

be supervised by Grandmother. The agreement further permitted Mother unsupervised time

with the Child as agreed between Mother and Grandmother. 

A final hearing was held on Grandmother’s petition for custody on November 28,

2005. Neither Father nor his counsel were present. The referee accepted the June 2005

mediated agreement and incorporated it in the court’s final order whereby full custody of

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the Child was formally awarded to Grandmother and Father was granted time with the Child

pursuant to Ms. Oakley’s recommendations.

Some six months later, in April 2006, Father filed a “Petition to Enter Permanent

Parenting Plan and Establish Rule 26 Visitation.” Therein, Father asserted that despite his

completion of therapy sessions with Ms. Oakley and parenting classes, he had been permitted

“only minimal day visits” with the Child and wished to exercise “standard overnight

visitation.” An agreed interim order permitted eight hours of unsupervised time with the

Child by Father on alternating Saturdays with a progress review after six to eight weeks. By

agreement, the hearing to review Father’s progress with the Child was continued to January

2007. Prior to that date, however, Grandmother obtained counsel and moved to dismiss

Father’s pending petition for a permanent parenting plan and time with the Child.

Grandmother asserted that Father’s petition failed to allege a material change of

circumstances as required to modify the terms of the November 28 final order. A second

interim order entered in January 2007 continued Father’s weekend time schedule; permitted

Father to obtain an independent psychologist to assist in determining a treatment plan for the

The mediated agreement is referenced by the juvenile court but is not included in the record before 3

this Court. 

The final order was entered in November 2006 nunc pro tunc to November 28, 2005.

4

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Child; authorized one additional mid-week visit by Father; adopted the parental bill of rights

to allow Father’s interaction with the Child at various school and extracurricular events;

authorized the commencement of overnight time with the Child by Father upon the

agreement of the psychologist Father selected, Dr. Thomas Hanaway, and Ms. Oakley;

denied Grandmother’s motion to dismiss; and continued Father’s pending petition. The

following month, Mother also filed a petition seeking custody of the Child.

On June 26, 2007, Father petitioned for custody to be changed from Grandmother to

Father. The final hearing was reset for October 2007. In the meantime, Grandmother

approached Father and requested that he surrender the Child to permit Grandmother and her

husband to adopt her. Father declined the request and filed a motion for contempt in which

he alleged that Grandmother had failure to cooperate with Dr. Hanaway in his assessment of

a treatment plan for the Child. On October 10, 2007, an agreed order was entered that

granted Father permission to begin overnight time with the Child for one night every other

weekend in addition to continuing his afternoon visits one day each week. Any further time

with the Child was permitted as recommended by Ms. Oakley and the guardian ad litem. In

addition, Mother agreed to dismiss her custody petition.

Following negotiations between the parties, another agreed order was entered in

December 2007 that further addressed Father’s time with the Child and co-parenting matters

between Grandmother and Father. Father’s co-parenting time was increased to a full

weekend every other weekend. In addition, Father was to have the Child from the evening

of Christmas Eve until 6:00 p.m. on Christmas Day. Father and Grandmother were ordered

to see Dr. Hanaway for co-parenting counseling and the referee directed that increased coparenting by Father would take place as recommended by Dr. Hanaway.

A bench hearing on the competing petitions for custody of the Child was held over

two days in April 2008. Three days before the hearing, Mother again sought custody of the

Child. In her petition, Mother stated that Grandmother had agreed that Mother was ready to

regain custody. At the hearing, the referee received the custodial evaluation and

recommendations from Dr. Hanaway. Overall, Dr. Hanaway concluded that both

Grandmother and Father could provide the Child with a stable home and “good parenting.”

As summarized by the referee, Dr. Hanaway “did not agree with the time schedule for

progression with [Father’s] visitation implemented by Ms. Oakley (for the [C]hild’stherapist

to evaluate the transition at six month intervals) due to the [C]hild’s progress and the level

of comfort and attachment demonstrated by the [C]hild toward [Father].” Dr. Hanaway

recommended a joint custody arrangement whereby Grandmother and Father would alternate

custody of the Child each week.

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Ms. Oakley testified that the Child was in a stable environment with Grandmother and

that her attachment issues had been successfully addressed. She acknowledged that the Child

had bonded with Father and that this bond was growing since Father’s time with the Child

had begun. Ms. Oakley supported Mother’s petition for custody because “(a) a female child

needs her mother; (b) the [C]hild lived with [Mother] for the first four years of her life, and

(c) the [C]hild’s strongest attachment has been with [Mother].” Ms. Oakley disagreed with

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Dr. Hanaway’s recommendation of a potential shared custody arrangement between

Grandmother and Mother; she endorsed custody of the Child being with Grandmother,

Mother, or a shared arrangement between them as the best options. Ms. Oakley stated that

there would be no negative consequences to the Child from increased contact with Father –

she regarded the issue as being how much time Father should receive. The referee noted that

Ms. Oakley “did not understand why [Father] filed a Petition for Custody because his

visitation was increasing on the schedule she had developed despite [Father’s] feelings that

progress was not occurring quickly enough.”

Mother testified that Father had sought a relationship with the Child since his paternity

was established and she had no concerns about the Child spending time with him; Mother

was emphatic that Father would be in the Child’s life if she was awarded custody. Among

Mother’s concerns if Father received custody was that Mother would not be able to see the

Child and that the Child had stated she loved Father and wanted to visit him but did not want

to live with him because she would never see Mother or Grandmother again.

The referee summarized Father’s testimony describing his time with the Child:

“Father has had difficulty seeing the [C]hild – [Father] believed meeting with [Ms. Oakley]

would enable him to move toward a standard visitation arrangement soon after paternity was

established, however, progress from supervised to unsupervised to overnights to weekends

took a long time (the therapist wanted six month intervals to observe each incremental

modification in [Father’s] visitation). . . .” Father recognized the importance of Grandmother

and Mother in the Child’s life and supported their continued contact with her.

Grandmother explained that she had proposed adopting the Child to maintain the

Child’s emotional welfare but said she intended to maintain the Child’s contact with Father.

Grandmother noted that she had never indicated that Mother could never regain custody of

the Child; she favored Mother regaining custody because she felt Mother had made

significant progress “in getting her life together.” In her testimony on April 11, Grandmother

indicated she would agree to a joint custody arrangement with Father as recommended by Dr.

Hanaway.

Ms. Oakley’s testimony as summarized by the referee. 

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At the conclusion of the hearing, the trial court announced its finding of a material

change in circumstances. The court ordered co-parenting time between Grandmother and

Father pending a hearing on May 20, 2008, at which time the court anticipated a final

disposition of the case. Notably, Grandmother’s views had changed since the April hearing.

In her motion for reconsideration of the court’s finding, Grandmother stated she no longer

supported sharing custody of the Child with Father. Further, she stated she no longer

supported returning custody of the Child to Mother.

The referee conducted her best interest analysis and concluded it was in the Child’s

best interest for Father to be the primary residential parent. In its June 16, 2008, final order

modifying custody, the referee further ordered continued time for Grandmother with the

Child on alternating weekends and some holidays, and day visits by Mother during

Grandmother’s established times. The juvenile court confirmed the referee’s judgment in

all respects.

On appeal de novo to the Circuit Court for Knox County, the circuit court confirmed

the findings of the juvenile court with one exception pertaining to the juvenile court’s

multiple bases for a change in circumstances. In its order, the circuit court stated in relevant

part as follows:

The argument presented was a legal argument touching upon

two issues: (1) whether or not the findings of a material change

of circumstances surrounding the [Child] by the lower [c]ourt

constitute a material change under the case law in this State, and

(2) whether or not the best interest analysis by the lower court

was accurate.

The lower [c]ourt found three areas in which there were material

changes in circumstances such that a change in custody was

warranted. The first, that Grandmother made a statement during

testimony that the [Child] should return to . . . [Mother’s]

custody should she become stable, cannot constitute a material

change in circumstances which warrants a change in custody.

The second and third findings, that since August 2005 there has

been ongoing gender discrimination against [Father] and that

[Father] has worked extraordinarily hard to expand contact with

his [Child] against much resistance are confirmed.

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Upon the finding of the above material change in circumstances

surrounding this [Child], this Court is in complete accord with

the best interest analysis presented in the Order of the Juvenile

Court [Referee]. . . .

Grandmother filed a timely notice of appeal.

II.

Grandmother raises issues on this appeal that we restate for clarity:

1. Did Father sufficiently allege a material change of

circumstances to support his petition for a change in custody? 

2. Did the trial court err in finding that “ongoing gender

discrimination” against [Father] and Father’s efforts to expand

contact with the Child against “much resistance” constituted a

material change in circumstances sufficient to warrant a change

in custody?

3. Did the trial court err in finding that a change in custody was

in the best interest of the Child?

III.

The determinations of whether a material change in circumstances has occurred and

where the best interest of the child lies are factual questions. Turner v. Purvis, No.

M2002-00023-COA-R3-CV, 2003 WL 1826223 at *4 (Tenn. Ct. App. M.S., filed April 9,

2003). A trial court’s factual findings are presumed to be correct, and we will not overturn

those factual findings unlessthe evidence preponderates against them. Tenn. R. App. P. 13(d)

(2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s

conclusions of law under a de novo standard upon the record with no presumption of

correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union

Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Because of the discretion given trial courts in the primary residential parenting area

and because of the fact-specific nature of these decisions, appellate courts are reluctant to

second-guess a trial court’s determinations regarding residential parenting and visitation.

Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). Further stated, such decisions

frequently turn on a determination of the credibility of the testimony, and the appellate courts

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are hesitant to reverse the trial courts’ decisions because the trial judge was able to observe

the witnesses and judge their credibility. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485

(Tenn. Ct. App. 1997). Accordingly, this Court will not reverse a trial court’s decision

regarding residential parenting status unless the record clearly demonstrates that the trial

court has abused its discretion. Parker v. Parker, 986 S.W.2d 557,563 (Tenn. 1999). A trial

court abuses its discretion only when it “applies an incorrect legal standard, or reaches a

decision which is against logic or reasoning that causes an injustice to the party

complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(quoting State v.

Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

IV.

Although Grandmother frames her first issue as contesting the sufficiency of Father’s

pleadings underlying his petition to change custody, we conclude that both her first and

second issues essentially challenge the trial court’s finding that there was a material change

in circumstances sufficient to warrant a change in the primary residential parenting status.

We therefore address the first two issues together. In short, Grandmother asserts that none

of the circumstances relied upon by the lower courts in this case are sufficient to warrant

modification of the earlier decree.

In Blair v. Badenhope, 77 S.W.3d 127(Tenn. 2002), the Supreme Court announced

the standard applicable in custody modification disputes between a parent and a non–parent

after the non-parent had been granted primary residential parent status. The Court stated:

“A trial court should apply the standard typically applied in parent-vs-parent modification

cases: that a material change in circumstances has occurred, which makes a change in

custody in the child’s best interest.” Id. at 143 (citing, e.g., Nichols v. Nichols, 792 S.W.2d

713, 715-16 (Tenn. 1990)).

Subsequently, in Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002), the Court

elaborated upon its holding as follows:

As explained in Blair, the “threshold issue” is whether a

material change in circumstances has occurred after the initial

custody determination. Id. at 150. While “there are no hard and

fast rules for determining when a child’s circumstances have

changed sufficiently to warrant a change of his or her custody,”

the following factors have formed a sound basis for determining

whether a material change in circumstances has occurred: the

change “has occurred after the entry of the order sought to be

modified,” the change “is not one that was known or reasonably

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anticipated when the order was entered,” and the change “is one

that affects the child’s well-being in a meaningful way.” Id.

(Citations omitted.) The determination of a material change in circumstances is the first step

in a two-part analysis the trial court must apply in resolving a petition to modify a custody

decree. That is, “[i]f a material change in circumstances has occurred, it must then be

determined whether the modification is in the child’s best interest[].” Id.

In the present case, in determining that a material change of circumstances had

occurred, the referee found in relevant part as follows:

The mediated agreement signed by [Father, Mother, and

Grandmother] on 6-28-05 definitively statesthat [Grandmother]

would like for [Father and Mother] “to be actively involved in

[the Child’s] life and for everyone to get along.”

* * *

The requirement of showing a material change in the [Child’s]

circumstance is to establish finality and stability for the

[Child’s] placement when considering future custody and

visitation issues by ensuring the focus is on the [Child].

The testimony presented by [Grandmother] that the [Child]

should be returned to [Mother’s] custody when [Mother] is

stable (which was endorsed and recommended by the [Child’s]

therapist) establishes that a material change has occurred which

materially affects the [Child] in that [Father] has been placed in

a subordinate and auxiliary role with [Mother] viewed as having

a more superior parental role than agreed to in the Final Order -

[Grandmother] is willing to restore custody of the [Child] to

[Mother] if [Mother] does not pose a substantial risk of harm to

the [Child], but is not willing to transfer custody of the [Child]

to [Father] based upon the same analysis despite his

demonstrated stability, his established relationship with the

[Child], and his demonstrated . . . commitment to parenting the

[Child].

The [Child’s] continued placement in [Grandmother’s] custody

is subject to change based upon both personal and gender-

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specific discrimination against [Father] by [Grandmother] and

the [Child’s] therapist (the [Child’s] therapist testified that a

female child needs to be with her mother) which was not

anticipated from the agreed Final Order entered in 2005.

[Father] has been required to seek the Court’s intervention to

obtain progressive contact with the [Child] and [Father]

continued to have less than standard visitation recommended by

the [Child’s] therapist after two years of incremental expansion

despite the therapist’stestimony that the [Child’s] emotional and

behavioral problems stemming from her separation from

[Mother] were under control in March 2007 and the [Child] was

bonding to [Father] ([Father] was not able to move to overnight

visitation with the [Child] until he had secured an independent

Custody Evaluation from Dr. Thomas Hanaway who

recommended an immediate move to overnight visitation for

[Father] with the [Child] in October 2007).

(Parenthetical information in original; paragraph breaks inserted for ease of reading). In

summary, the referee concluded that “ a change in circumstances has occurred that materially

affects the [Child] based upon (a) the change in the stability of the [Child’s] placement with

[Grandmother] and (b) the discrimination against the developing parental role of [Father]

with the [Child] by [Grandmother] and the [Child’s] therapist. . . .”

Initially, we note our agreement with the circuit court’s conclusion that,

Grandmother’s testimony at trial, in and of itself, cannot constitute a material change in

circumstances to support a change in custody. In order to justify a change in a custodial

arrangement, there must be “such a change in circumstances as will directly affect the

welfare of the minor.” Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. App. 1981).

Grandmother’s expressed preference for the Child to be returned to Mother’s custody when

Mother became stable is not a “circumstance” at all, but merely a statement of her opinion.

The referee, however, did not rely on Grandmother’sstatement in isolation in concluding that

a change of circumstances had occurred. As noted, the referee further found that

Grandmother and Ms. Oakley discriminated against Father by opposing his efforts at

expanded contact with the Child despite the growing bond between the two of them and the

Child’s own desire to see Father more. Father was eventually forced to turn to the courts to

gain even “standard” time with the Child. The referee summed up Father’s difficulties

regarding parenting time in an order declaring the case extended and complex as follows:

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Despite all the “agreed” orders in this matter, there was little

agreement. [Grandmother] consistently acted to prevent or delay

[Father’s] building a relationship with the [C]hild. It took over

2 years for [Father] to get court ordered “standard visitation.”

He did everything the Court asked of him and everything the

two therapists asked of him.

At all times, we awaited the ok from therapists to move forward

with increased visits. [Father] had to file petitions with this

Court at each stage of the proceedings in order to get that which

had been previously ordered.

The evidence does not preponderate against the referee’s conclusion, confirmed by

the circuit court, that the circumstances surrounding the Child had materially changed.

Clearly, Grandmother and Ms. Oakley opposed any arrangement whereby Father might gain

full or even partial custody of the Child. Grandmother indicated her preference that her own

daughter, Mother, regain custody, while Ms. Oakley held a firm belief that a female child

belongs with her mother. In our view, the discriminatory sentiments of Grandmother and

Ms. Oakley against Father’s potential parenting role led them to resist his efforts to expand

his relationship with the Child by ensuring that his relationship with the Child progressed as

slowly as possible. Although a part of its subsequent analysis of the best interest of the

Child, we find the following language best sums up the court’s findings regarding a material

change of circumstances as well. The referee found as follows:

The original agreement mediated in 2005 between [Mother,

Father, and Grandmother] set goals for each in their

relationships with each other and with the [C]hild: (1) [Father]

“would be a permanent, regular, loving dad to [the Child],” (2)

[Mother] would “remain in [the Child’s] life as her mom,” and

(3) [Grandmother] “will remain [the Child’s] primary caregiver”

and “would like [Father and Mother] to be actively involved in

[the Child’s] life, and for everyone to get along.”

* * *

[Grandmother’s] plans for the [C]hild’s future stability have

ranged from adoption to returning the [C]hild to [Mother].

[Father’s] success in establishing a relationship with the [C]hild

and the [Father’s] importance in the [C]hild’s life have been

minimized by [Grandmother] and [Ms. Oakley]. [Father] has

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persisted in overcoming all obstacles placed before him in his

efforts to gain greater access to his daughter – with those

obstacles arising from [Grandmother and Ms. Oakley] who

indicated she would support [Mother] regaining custody . . . but

would not consider [Father] to be an appropriate custodian

because a female child needs to be with her mother.

* * *

A significant amount of distrust has developed between [the

parties] regarding their level of cooperation due to the prolonged

transition schedule imposed for [Father] during the preceding

three years.

As can be seen throughout its final order, the referee found that there was a change

in circumstances surrounding the Child from the situation that existed at the time the parties

entered into the 2005 mediated agreement – the basis of the earlier custody decree.

Grandmother, who had agreed to remain the Child’s primary caregiver, revealed that she

would not oppose returning custody to Mother, but would not support awarding custody to

Father in the future despite her acknowledgment of his stability. As Father became frustrated

with the slowly progressing co-parenting schedule and eventually sought a formal parenting

plan and then custody of the Child, Grandmother opposed his efforts in court while Ms.

Oakley maintained lengthy intervals between any increases in Father’s contact with the

Child. In opposing Father’s petition for a permanent parenting plan, for example (in which

Father proposed a residential schedule of 234 days with Grandmother and 131 days with

Father), Grandmother asserted that Father had failed to establish a material change in

circumstances and emphasized that Father had failed to establish that it was in the Child’s

best interest to have expanded visitation with Father “against [Ms. Oakley’s]

recommendation.” (Emphasis in original motion.) Clearly, this was not the arrangement

Father had anticipated when he initially agreed that Grandmother should remain the Child’s

caregiver in 2005 and completed sessions with Ms. Oakley in an effort to gain regular time

with the Child; the referee noted that from June 2005 through October 2007, Father had been

limited to day visits on Ms. Oakley’s recommendation. Moreover, within its best interest

analysis, the referee found that “the delays in expanding [Father’s] visitation with the [C]hild

have interfered with the natural progression of the [C]hild’s attachment to [Father].” In our

view, this finding also evidences a material change in circumstances regarding Father’s

developing relationship with the Child “that affects the child’s well-being in a meaningful

way.” Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003).

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The facts presented do not preponderate against the finding of a change in

circumstances that materially affected the Child based on the discrimination and resistance

against Father and against his efforts to develop his parental role in the Child’s life.

V.

Having determined that Father proved a material change in circumstances, the second

part of the analysis was triggered and the referee properly turned to consider the best interest

of the Child. As discussed earlier, if a material change in circumstances has occurred, the

best interest analysis must follow. Kiesling v. Keisling, 196 S.W.3d 703, 718 (Tenn. Ct.

App. 2005). To determine what is in a child’s best interest, the court considers the relevant

factors enumerated in Tenn. Code Ann. § 36-6-106. Those factors include:

(1) The love, affection and emotional ties existing between the

parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the

child with food, clothing, medical care, education and other

necessary care and the degree to which a parent or caregiver 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 parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7) (A) The reasonable preference of the child, if twelve (12)

years of age or older;

(B) The court may hear the preference of a younger child upon

request. The preferences of older children should normally be

given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the

other parent or to any other person . . . ;

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(9) The character and behavior of any other person who resides

in or frequents the home of a parent or caregiver and the

person’s interactions with the child; and

(10) Each parent or caregiver’s past and potential for future

performance of parenting responsibilities, including the

willingness and ability of each of the parents and caregivers to

facilitate and encourage a close and continuing parent-child

relationship between the child and both of the child’s parents,

consistent with the best interest of the child.

Here, the referee considered each factor and made extensive findings of fact in its best

interest analysis. As to a majority of the factors, the referee ranked Grandmother and Father

equally. Her finding that the best interest of the Child was served by placing her in Father’s

care turned on its consideration of three factors. Accordingly, we set out the referee’s

findings as to those specific factors:

(1) The love, affection, and emotional ties existing between

[Father, Mother, Grandmother and the Child] – The Child’s

therapist indicates the child’s greatest bond is with her mother;

however, the mother has not maintained regular or significant

contact with the child since 2005 and the child’s mental health

diagnosis of Adjustment Disorder stems from the separation

anxiety the Child experienced when originally separated from

her mother and placed with [Grandmother]. The child is bonded

to [Grandmother] and the Child’s therapist indicates the child

has “two mothers” – [Mother and Grandmother] both occupy

that role with the Child. The Child has established a bond with

[Father] during the three years he has been visiting with the

Child under the direction of the Child’s therapist despite the

slow transitioning to expanded contact. The Child refers to all

her family members in a positive manner and has ranked

[Grandmother and Father] almost equally in describing their

relationship with her – the Child’s responses actually ranked

[Father] as slightly higher than [Grandmother] as caregivers.

The Child’s therapist has indicated it would be devastating for

the Child to separate[ ] her from individuals to whom she has a

strong attachment. Behavioral and emotional problems have not

been exhibited by the Child since March 2007. The Child has

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overcome significant barriers to establish a bonded relationship

with a father she did not know until 2005 after being separated

from [Mother] who had been her primary caregiver for the first

four years of the Child’s life. The Child’s requests to increase

her visitation with [Father] outweigh the Child’s reported

comments that she does not want to live with [Father] – the

Child is reported to have stated a fear she would not see [Mother

or Grandmother] again if she resides with [Father] which is

similar to the statement made . . . during [Mother’s] testimony

(the parties were ordered not to discuss the pending Court

proceedings with the Child or while the Child was present and

the similarity of the Child’s concern to [Mother’s] statement

suggests the Child has been privy to or part of conversations

previously proscribed by the Court). The Child’s relationship

with [Father] is remarkable due to the trust issues the Child

would have had to overcome with [Father] (given [Mother’s]

significant departure from the Child’s life) and the obstacles

imposed on [Father] in his attempts to develop a relationship

with the Child. The Child’s representation of [Father] [having]

a higher ranking than [Grandmother] is also significant given

the amount of time each has been in the Child’s life. In the

analysis of this best interest factor, [Father] is higher than

[Mother or Grandmother].

* * *

(3) The importance of continuity in the child’s life and the

length of time the child has lived in a stable and satisfactory

environment – The Child has resided continuously with

[Grandmother] since 2005 when custody was removed from

[Mother]. The original agreement between [Mother,

Grandmother, and Father] indicated the Child would reside with

[Grandmother] and would have an on-going relationship with

her parents. [Grandmother] has provided the Child with a stable

and nurturing environment and arranged individual counseling

to address . . . separation anxiety and adjustment issues . . . .

[Father] had not been in the Child’s life until 2005 when DNA

testing confirmed he was the Child’s biological father. [Father]

immediately began the process of establishing a relationship

with the Child, despite restrictions imposed on [Father] by the

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child’s therapist as a result of the Child’s reaction to her

separation from [Mother]. [Father] has been steady and

persistent in his attempts to have a normal relationship with the

Child. [Father] has been able to gain the Child’s trust because he

has not been absent from her life since he learned he was her

father. [Mother’s] contact with the Child has not been as

consistent as[Father’s] contact ([Mother] testified she would see

the Child either two to three times per week or on alternate

weeks) and [Mother] has no set or reliable schedule for

visitation (which would appear to have been important in

treating a child with separation anxiety). The [Child] has made

significant progress in overcoming the stress and anxiety she

experienced with [Mother’s] departure . . . and the [Child] has

responded positively to [Father’s] love, attention, and

commitment to her welfare. [Father and Stepmother] have

provided the [Child] with a stable and nurturing environment

during the [Child’s] expanding visitation and it is a household

where the [C]hild has indicated she wants to spend more time.

[Grandmother] and the [C]hild’s therapist testified that the

[C]hild should be placed with [Mother] when [Mother] is

“stable” which suggests continuity for the [C]hild will be

changing in the future by agreement between [Mother] and

[Grandmother]. If changes in the [C]hild’s placement are

anticipated, “continuity” should be defined as “commitment to

the [C]hild” – [Father] has demonstrated his unfaltering

commitment to parenting the [C]hild regardless of the hurdles

he must overcome. [Father’s] steadfast commitment to his

daughter has contributed to her in overcoming the anxiety she

experienced when [Mother] relinquished her role as caregiver .

. . – a role [Father] has been striving to obtain. With

“continuity” being evaluated as “commitment to the [C]hild,”

[Father] ranks higher than [Mother or Grandmother] on this best

interest factor.

(4) The stability of the family unit of [Father, Mother, and

Grandmother] – [Father] learned through DNA testing that he

was the [C]hild’s father shortly after his marriage to [Stepmother]. [Father] began a steady and persistent course of action

to establish a relationship with the [C]hild with the continued

support of his wife. [Father and Stepmother] obtained temporary

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. . . custody of [Father’s] two grandchildren and are providing

appropriate care and supervision for those two children. [Stepmother] has demonstrated her commitment to her husband and

to her husband’s children and grandchildren by including the

children in her family and assuming responsibility for the

children’s care and supervision. Dr. Thomas Hanaway had the

opportunity to interview [Father and Stepmother] and indicated

no concerns about [them] as caregivers for the [C]hild. [Mother]

reported no concerns regarding [Father’s] household and

[Grandmother] acknowledged that [Father] was “stable.”

[Grandmother] was determined to be an appropriate resource for

the [C]hild when she was originally awarded . . . custody in

2005. [Grandmother’s] household continuesto be an appropriate

resource for the [C]hild and for the other grandchildren residing

in [her] household.

* * *

The family unit of both [Father and Grandmother] can offer the

[C]hild stability; however, the greater involvement of Stepmother in assisting [Father] in the care of the [C]hild results in

a higher ranking for [Father] over [Grandmother].

Tenn. Code Ann. § 36-6-106(a)(1),(3), and (4). (All emphasis in original).

Here, the referee considered the pleadings, the testimony of the parties, the Child’s

therapist, and the guardian ad litem, an evaluation by Dr. Hanaway, and the entire record, and

found that Father “ranks higher overall in his steadfast determination to provide stability for

the [C]hild and to establish an enduring relationship with [the Child]” in ruling that a

modification of custody was in the Child’s best interest. On our review, the evidence does

not preponderate against the referee’s findings, as adopted by the trial court, regarding the

best interest of the Child.

“[A] trial court’s decision regarding custody or visitation should be set aside only

when it ‘falls outside the spectrum of rulings that might reasonably result from an application

of the correct legal standards to the evidence found in the record.’” Curtis v. Hill, 215

S.W.3d 836, 839 (Tenn. Ct. App. 2006)(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88

(Tenn. 2001)). In the present case, the referee correctly applied the law to the evidence

presented and concluded that there has been a material change in circumstances and that the

Child’s best interest is served by a change of the primary residential parenting status from

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Grandmother to Father. The juvenile court and the circuit court confirmed the referee’s

findings, analysis, and conclusions in support of its custody determination. The evidence

does not preponderate against the common decisions of these courts.

VI.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,

L.R. This case is remanded to the trial court, pursuant to applicable law, for enforcement of

the court’s judgment and for the collection of costs assessed below.

_________________________________

CHARLES D. SUSANO, JR., JUDGE

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