1 Divi sion II of the Sumne r Coun ty General Se ssions Cou rt has concurr ent juris diction wit h the circui t and chancery cour ts over "do mestic matters ." Ac t of M ar. 10 , 198 2, ch. 2 36, § 3, 19 82 T enn. P riv. Ac ts 89, 8 9- 90 , amended by Act of

May 11, 1989, ch. 93, § 2, 1989 Tenn. Pr iv. Acts 186, 186- 87. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M ay 31, 2002
KELLEY SCOTT McEV OY v. KIMBERLY M ARIE BREWER Appeal from the General Sessions Court for Sumner County

No. 2819-G C.L. Rogers, Judge

No. M2001-02054-COA-R3-CV - Filed Nove mber 25, 2003

This ap pe al involves the custody of a se ven-yea r-old girl. Her parents initially agreed to joint custody in their marital dissolution agreement that was approved by the GeneralSessions Court for Sumner County. Both parties later petitioned for sol e custody. The g eneral sessions court determ ined that the father should be the child’s primary custodial parent because the mother had married a man who posed a credible threat of domestic abuse or violence toward the chi ld and because the existing alternating custody arrangement was no longe r workable. The mothe

r asser ts on this appeal that the evidence doe s not suppor t the ge neral s essio ns cou rt’s d ecisi on to change
cu st od y. We have determined that theevidence does not preponderate against the court’s decision to modify the custody

arrangement and to awar d the father primary

physical custody

of the child. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Affirmed
W ILLIA M C. K OCH , J R

. , J., delivered the opinion of the court, in which W IL LI AM B. C AIN and P ATRIC IA J. C OTT RELL , JJ., joined. Dennis W. Powers, Gallatin, Tennessee, for the appellant, Kimberly Marie Brewer.

BruceN. Oldham

and Sue Hy

nds Dunning, Gall atin, Ten ness ee, for the appelle e, Kelle y Sc ott Mc Ev oy.
OPINION
I. Kimberly Marie Spears gave birth to Chelsea L ynn McE voy in May 1996. Ms. Spears married Kelley Scott McEvoy

in November 1997, and two weeks later, Mr. McEvoy adopted Chelsea Ly nn McEvoy. The

parties s eparat

ed in ear ly 1 999 and we

re divor ced in the Sumner Cou

nty General Sessions Court 1 on October 4, 1999. Their marital dissolution agreement ca lled f or joi nt custody with Ms. Spears being the child’s primary r

esidential parent. The parties also agreed that-2-

Ms. Sp ears would have Chelsea overnight on Monday s and Wednesdays and tha t Mr. McE voy woul d have her over

night on T

uesday s and Thur sday s. In additio n , they ag

reed to alternate custody

on weekends and holiday s and that each parent would have two wee ks of summer vacation.
Mr. McEvoy’swork schedule is f lexible bec ause he i s a self-employed locksmith. After the divorce, he married Cindy McEvoy who alre ady had a son the same age as Chelsea. Mr. McEvoy andhis new spouse later had a daughter of their own. Their marriage was not without some discord. Ev en tu al ly, their he ated ar gumentsprompted

them to begin ma

rriag e counse

ling to he lp them deal with the st

ress ca used by the child ren, the ir marri age, a

nd the cus tody

dispute wi

th Ms. Spea

rs.
Ms. Spears began

dating Tommy Spears after the divorce and eve ntually moved in w ith him. Mr. Spears had a severe problem with alcohol. He was in toxicated e

very weekend, and he

became violentand abusive when he was intoxicated. He physically abused his own son, andhe reg ularly beat Ms. Spears. On one occasion, he stabbed Ms. Spears. After Ms. Spearsbecame pregn ant with his child, Mr. Spears choked her and jumped on her stomach, causing her to eventually miscarry.
The record

containsno eviden

ce that M

r. Spea rs directed his violent behavior toward Chelsea. Nonetheless, Chelsea began having nightmares and episodes of uncontr ollable crying

and bedwetting while she was staying with Mr. McEvoy. She also beg an clinging to Mr. McEvoy and crying when it became time to return her to Ms. Spears. Mr. McEvoy learned about Mr. Spears’s conduct when he telephoned Ms. Spears about Chelsea’s behavior. On another occasion, Ms. Spears telephonedMr. McEvoy to tear fully tell him that Mr. Spears had choked her and that she want ed to get aw ay from him. In April 2000, Mr. McEvoy filed a petition to modify the

general sessions court’s October 4, 1999 order. He sought sole custody of Chelsea becau se of the effect that Mr. Spears’s violent conduct was having on her. Ms. Spears opposed Mr. McEvoy’s petition and filed a petition of

her
own seeking sole custody . Following a hearing in May 2000, the court filed an order on June 5, 2000 directing Ms. Spear s not to per mit Chelsea

to be in Mr . Spears’ s presence. Following th is order, Ms. Spears and Mr. Spears c ontinued t o live in a house owned by Mr . Spears’s grandfather. When Chelsea w as stay

ing with M s. Spears , Mr. Spea rs supposedly

moved in with his grandfather. However, on at

least one occasion, Mr. Spears and Chelsea were observed togethe r, and this incident prompted Mr . M cE vo y t o file a pet ition for criminal contempt. On October 6, 2000, Ms. Spears married Mr. Spears.
The general sessions court conducted a he aring on July 17, 2001, a

nd issued a

n order o n July 18, 2001, concluding that a material chan ge in the parties’ and the child’s circumstanc es had occurred requi ring th e modi ficat ion o f the ex isti ng join t custody arra ngement and that the child’s interest s would be b est

served by ma

king Mr. McEvoy

the primary

custodia l parent . The cou

rt also ordered that Chelsea could not be left alone at any time with Mr. Spears and that Mr. McEvoy had the authority

to make the

decision s rega

rding Ch elsea’ s medica

l care w hen the pa

rties we re unabl e to agree on her treatment. Finally , the court imposed a five-day suspended sentence for c ivi l contempt against Ms. Spears. Ms. Spears has appealed f rom this order.-3- II. T HE D ECIS ION TO C HANGE C USTODY
Ms. Spears first argues that the evidence preponderates ag ainst the general sessions court’s decision to award Mr. McEvoy primary phy sical custody of Chelsea . She insists that the evidence preponderates against the court’s conclusion that ther e had been a

material change in Chelsea’s circumstances and, even if there had been, Chelsea’ s interests would be served best by naming her the child’s primary phy sical custodian. We have concluded that the evidence doesnot preponderate agains t the cou rt’s conclusions regarding the e xistence of a material change in circumstanc es or Chelsea’ s best inte

rests.
A. Custodyand visitation decisions are among the most important decisions that courts make. Steen v. Steen , 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001); Adelsperger v. Adelsperger , 970 S.W.2d 482, 484 (Tenn. Ct. App. 1997 ). Their chief pu rpose is to promote the child’s welfare by creating
an environment that promotes a nurturing relationship w ith both parents. Aaby v. Strange , 924 S.W.2d 623, 628 (Tenn. 1996).
Eachparent has his or her own strengths and weaknesses, Gaskill v. Gaskill , 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996), and it would be unrealistic to measure each pa rent agains tthe standard of perfection. Earls v. E

arls , 42 S.W.3d 877, 885 (Tenn. Ct. App. 20 00); Bush v. Bush , 684 S.W.2d 89, 92 (Tenn. Ct. App. 1984). Therefore, custody decisions are not intended to reward parents for prior virtuous c onduct or

to punish the

m for thei r human f railtiesor past

missteps. Earls v. E

arls , 42 S.W.3d at 885; Gaskill v . Gaskill , 936 S.W.2d at 630. Rather, t aking th e paren ts as they present ly are, the cour

ts must pra

gmatic ally

decide w hether t he pare nts, even though d ivorced , will be a

ble to share the responsibilities for rais ing thei r child or, if not , which of

the two pa

rents is c omparat

ively more fit to take on the primary parenting role.
Childr en thriv e in stable environments. Aaby v. Strange , 924 S.W.2d a t 627; NATIONAL I NTERDISCIPLINARY C OLLOQU IUM ON C HILD C US TODY , LEGAL AND M ENTA L H E ALTH P ERSP ECTI VE S ON C HIL D C USTODY LAW : A D E SKBOO K FOR J UDGE S § 5:1, at 51 (1998). A ccordingly , the cour

ts favor existing custody arra

ngements. Taylor v. Taylor , 849 S.W.2d 319, 332 (Tenn. 1993); Hoalcraft v. Smithson , 19 S.W.3d 822, 828 (Tenn. Ct. App. 1999). In fact, a c ustody decision, once made and imple

mented, i s conside

red resjudicata

upon th e fac ts in existence or re asonably forese eable

when the decision was made. Young v. Smit h , 193 Tenn. 480, 485, 246 S.W.2d 93, 95 (1952); Steen v. Steen , 61 S.W.3d at 32 7; Solima v. Solima , 7 S.W.3d 30, 32 (Tenn. Ct. App. 1998). Despite a preference for continuing existing custody arra

ngements, the courts have recognized

that the c ircumsta

nces of c hildren a nd their p arents c

hange . Accor

dingly , our st atut es anddecision s empowe

r the cou rts to alte r custody arr

angements when intervening c ircumstances require modifica

tions. Ten

n. Co de Ann . § 36-6-101(a)(1) (2003). Thus, courts may modify an existing custody arra

ngement when required by unanticipated facts or subsequently emerging condition s. Smith v. H

aase , 521 S.W.2d 4 9, 50 (Te nn.1975) ; Adelsp erger v. Adelsperger , 970 S.W.2d at 485. In the interests of stability in the child’s life, a court should not alter an existing custody arrang ement unt

il (1) it is satisfied either that the child’s circumstances have cha nged in a2 Over th e ye ars , t he Ten nes see Supr eme Co urt has c onsisten tly decline d to re view this c ourt’s decisions holding that the change in cir cum stance s that wil l tri gger a consideration of a change i n custody must involve changes in the child’s circum stance s rather than eithe r or b oth o f the par ents. Steen v. St een , 61 S.W.3d at 327; Hoalcraf t v. Smiths on , 19 S.W.3d at 829. The Co urt has no w de cided that a change in either parent’s ci rcumstances can also trigger a change of custody if the change “aff ects t he chil d’s wel l-bei ng.” Kendrick v. Shoemake , 90 S .W .3d a t 570 . W hile a ch ange in the cus todial parent’ s cir cumstanc es neces sari ly af fect s the chil d, a change in t he noncust odial pare nt’ s cir cumstanc es may not. B ecau se the C ourt d id no t explicitly lim it Kendrick v. Shoemake to changes in the custo dial p arent’s circumstance s, we must presume that the Court now envi sions that changes in a nonc ustodi al parent ’s ci rcumsta nces can justify a change of custody if the noncustodial parent can d emons trat e that the cha nge in h is or h er cir cumstanc es somehow aff

ects the chi ld.
-4- material way sinc e the e ntry of the pre sently operative c ustody decree or that a parent’s circ umstances have changed in a way that affects the child’s well-being, (2) it has caref ull y compared the curr ent fitne ss of the p arents to be the child’s custodian, and (3) it has concluded that changingthe existing custody arra ngement is in the child’s best interests using the factorsin Tenn. Code Ann. § 36-6-106(a)(1) (2001). Cranston v. Combs , 106 S.W .3d 641, 6 44 (Tenn. 2003); Kendrick v. Shoemake , 90 S.W.3d 56 6, 570 (Te nn. 2002) ; Blair

v. Badenhope , 77 S.W.3d 137, 150 (Tenn. 2002).
There are no bright line rules for determ ining when a change of circumstances should be deemed material enough to warrant changing an

existing custody arra

ngement. Cranston v. Combs , 106 S.W.3d at 644; Solima v. Solima , 7 S.W.3d at 32. These decisions turn on the uniquefacts of eachcase. As a general matter , however, thefollowing principles illuminate the inquiry. F irst, the change of circumstances must involve either the child’s circumstances or a parent’s circumstances that affect the ch ild’s well- being. 2 Second, the changed circumstances must have arisen after the entry of the custody

order sought to be modified. Third, the changed circumstances must not have been reasonably

anticipated when the underly ing decree was enter

ed . Fourth , the cha

nge in circumstances must affect the ch ild’s well-being

in so me ma te ri al wa y. Kendrick v. Shoemake , 90 S.W.3d at 570. The existence of harm or pos sibility of harm to the child is no longer a necessary ingredient for a finding that a mate rial change of

circumstances has occurred. Cranston v. Combs , 106 S.W.3d at 645.
The person seeking to change a n existing custody arra ngement has the burden of demonstrating both that the child’s circumstances have chang ed materially a nd that the best in

terests of the child require a change in the e xisting custody arrang ement. Nichols v. Nichols , 792 S.W.2d 713, 714-15 (Tenn. 1990), rev’d on other grounds , Aaby v. Strange , 924 S.W.2d 623 (Tenn. 1996); In re Bridges , 63 S.W.3d 346, 348 (Tenn. Ct. App. 2001). The threshold question is whether there has been a

material change in circumstance s. Cranston v. Combs , 106 S.W.3d a t 644; Kendrick v. Shoemake , 90 S.W.3d at 570. If theperson seeking the change of custody cannot demonstra te that
a material change in circumstance s has occurred, the court should not re-examine the comparative fitness of the parents, Caudill v. Foley , 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999), or engage in a “best inte rests of the ch

ild” ana lys is. Rather , in the ab sence of proof of a materi al change in circumstances, the trialcourt should simply decline to change custody

. Hoalcraft v. Smithson , 19 S.W.3d at 828.3 The former gi rlf riend i s now Mr. McEvoy’s wi fe.
4 Ni cho ls on v . W

il li ams , 203 F. Supp.2d 153 , 197 -98 (E .D.N .Y. 2 002 ); H OWARD A. D AVI DSON , T HE I MPACT OF D OMESTI C V I OL ENCE ON C HIL DREN : A R EPORT TO THE P R ESI DENT O F THE A MERI CAN B AR A SSOC I ATI ON 1 (1994) (calling chil dren who w itness do mestic violen ce “sec ond ary victim s”); Lynn e R. K urtz, Protec ti ng New York’ s Chil dren: An Argument f

or the C reatio n of a Reb uttab le Pres um ption Ag ainst A wa rding a Sp ous e Ab user C ustod y of a Ch ild , 60 Alb. L. Rev. 1345, 135 0 (1997 ); Lois A . W eithorn , Pro tecting Ch ildren Fro m E xpo sure to Do me stic Violenc e: The U se and Ab use o

f Child Maltr eatment , 53 H astings L .J. 1, 4-6 (20 01) ; Betsy M . Gro ves et al., Silent Victi ms: Children Who Witness Violence , 269 JAM A 262 (1 993). -5- B.
We turn first to the threshold question – whether there has been a mate rial chan ge in the circumst ances. The general sessions court’s conclusion tha t the circ umstance s had, in f

act, materia lly chang ed does n ot requir

e an extended ana

lys is becau se even the most cursory reading of the record reveals that the circumstance s changed materially after the parties’ divorce in 1999. That change is the home environment created when Ms. Spears entered into a relationship with and later married Mr. Spears. Remarriage, by itself, is not the sort of change in circumstances that triggers a re-e xamination of a n existing

custody arrang ement be cause r emarria ge is suc

h a common

occurr ence in contemporary

society that it can

reasonably

be anticipated when

parties divorce. Buckles v. Riggs , 106 S.W.3 d 668, 674 (Tenn. Ct . App. 200 3); Smithson v. Eatherly , No. 01A01-9806-CV-00314, 1999 WL 5485 86, at *5 (Tenn. Ct. A pp. July 29, 1999) (No Tenn. R. App. P. 11 application filed) (pointing out that 75% of divorced persons marry again). However, cha

nges in the ho me en vi ro nm en t b ro ug ht ab ou t b y a later ma rriag e may

amount to

a material change of circ umstances if they materia lly a ffect th e child or the child’s parents. Elder v. Elder , M1998-00935-COA-R3-CV, 2001 WL 1077961, at

*3 (Tenn. Ct. App. Sept. 14, 2001) (No Tenn. R. App. P. 11 application filed); McCain v. Grim , No. 01A01-9711-CH-00634, 1999 WL 820216, at *3 (Tenn. Ct. App. Oct. 15 , 1999) (No Tenn. R. App. P. 11 application filed); Tortorich v. Erickson , 675 S.W.2d 190, 192 (Tenn. Ct. App. 1984).
The evidence supports the general sessions court’s conclusion that Mr. Spears has a violent disposition and that he has physically abused Ms. Spears, his biological son, and a former g irlfriend. 3 Ms. Spears dismisses this evidence by a rguing that ther

e is no proof t

hat Mr. Spe ars has phys ically abusedChelsea. That may ver y well be true; howe

ver, the fact that

Chelsea has so far been spared Mr. Spears’s abuse does not mean that she had not been affected

materia lly by be ing exposed to his abusive treatment of others. Being exposed to domestic violence ca n have animme diate and lo ngtermeffect on a child, even if the ch ild is not a v

ictim of the abuse

. 4 The record contains evidence that Chelsea’s behavior already refl ects t he effects of Mr. Spears’ s conduc t. Accor dingly , Ms. Spears’s marriage to an abuser providesan ample basis for thegeneral sessions court’s conclusion that a material change in circumstanc es had occurred.5 We have point ed out on oth er occa sions tha t this sort of c ustod y arran gem ent usua lly prov es to b e unw orka ble

with the pa ssage o f time. Sw ett v. Sw ett , No . M 199 8-00 961 -CO A-R 3-CV , 200 2 W L 13 896 14, a t *7-8 (T enn. C t. App. June 27, 2002 ) (No T enn. R. App. P. 11 app licati on filed).
-6- C.
We have affirmed

the gener al session s court’ s conclus ion that a materia l chang e in circumstances occurred after the parties’ d ivorce in 1999 . Accordingly , we must now decide whether the evidence supports the court’s conclusion that Chels ea’s inte

rests would be served best by placing her in Mr. McE

voy ’s custod

y. We find that t

he evide nce supp orts the court’s decision to grant Mr. McEvoy custody

of his daughter.
Like initial cu sto dy proce edings, the process used to determine the proper custodial placement

in a change of custody

proceeding entails comparing the parental fitness of the competing parents

. Placencia v. Placenc ia , 3 S.W.3d 497 , 503 (Te nn. Ct. App . 1999); Whitaker v. Whitaker , 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). This is a particularly f act-intensive process shaped by the factors in Tenn. Code Ann. § 36-6-106( a) (2001). Parental unfitness is not a prerequisite for changingcu st od y. Gaskill v. Gaskill , 936 S.W.2d at 631. Once a material change of circumstances has be en s hown, a court may award custody

to the parent who is comparatively more fit than the other to be the custodial parent.
This record contains ample evidence with reg ard to four specific matters t hat support the general sessions court’s conclusion that Mr. McEvoy was comparatively

more fit than Ms. Spears to be Chelsea’ s primary

phy sical cu stodian. F

irst, the e vidence demonstr

ates tha t the exis tin g “revolvi ng door” custody arra ngement had not worked and that it would become eve n more unworka ble now that Ch

elsea wa s ready

to begin school. 5 Second, M s. Spears ha d interfe red with Mr. McEvoy’s ef

forts to obtain medical treatme nt and the rapy for Chels ea. Thir

d, Ms. Spears had demonstratedher inability to manag e her anger and animosity

toward Mr. McEvoy

by b eing un able to control her

use of derogatory

remarks and profanity. F inally, Ms. Spears had marr ied Mr. Spears despite his abusive tendencies and saw nothing harmful in exposing Chelsea to this abu sive environm ent. Our decision to uphold the general sessions court’s decision to grant Mr. McEvoy custody should not be con str

ued to reflect our belief that Mr. McEvoy c an provid e a perf ect home environment

for Chels ea. The

evid ence rega rding the arguments between the McEvoys and the adolescent

explorations of Che lsea and her step -brothe r reflects that th

ere ar e pressu res in the ir relation ship as well. However, the record also demonstra tes that the McEv oys have met these challenges head-onin a matur e and ap propria te way by s eeking

counseling for t

hemselve s and thei

r children. The evidence clearly supports the conclusion that Mr. McEvoy ’s home e nvironme nt is superior to Ms. Spea

rs’s home environm

ent.6 In fac t, t he court found expl icit

ly t hat Ms. Spears was not credibl e.

-7- III.
A DULT S UPERVI SIO N FOR M R . S PEARS ’ S C ONTACTS
Ms. Spears also takes issue with the provision in the July 18, 2001 order directing that “[t]he child shall not b e left al one and without another adult presen t at any time or pla

ce with T ommy Spears.” She insists that the general sessions court abused its discretion w hen it pl aced thi s limitation on Mr. Spears’s relationship with Chelsea because “[t]here is absolutely no evidence in the record that Tommy Spea rs is a danger

to the Child or that he is violent or abusive towards the Child.” We disagree.
The "abuse

of discretion" standard is a review-constra ining standard of review that calls for less intense appellate review and, therefor e, less likelihood tha t the trial court's decision will be reversed. State ex rel. Jones v. Looper , 86 S.W .3d 189, 19 3 (Tenn. Ct. App. 20 00); White v. Vanderbi lt

Univ. , 21 S.W.3d 215, 222-23 (Tenn. Ct. App. 1999). Appellate courts do not have the latitude to substitut

e their d iscretio n for tha

t of the tr ial cour t. Henry v. Goins , 104 S.W.3d 475, 479 (Tenn. 2003); State ex rel. Vaughn v. Kaatrude , 21 S.W.3d 244, 248 (Te nn. Ct. App. 2000 ). Thus,
a trial court's discretionary decision will be upheld as long as it is not clearly unr easonable, Bogan
v. Bogan , 60 S.W.3d 721, 733 (T e nn. 2001) , and rea sonable m inds can d isagree about it s corre ctness. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (T enn. 2001 ); State v. S cott, 33 S.W.3d 746, 752 (Tenn. 2000). Dis cretion ary

decision s must, howe

ver, tak e the app licable l aw and th e relev ant fac ts into
accoun t. Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996). Accordingly , a trial court will be fo und to have "abused its discretion" only when it applies an incorrect legal standa rd, rea ches a decision that is illogical, bases its decision on a clearly erroneous assessment of the evi dence, or
em pl oys reasoning that causes an injustice to the complaining pa rty. Perr y v. Per ry , 114 S.W.3d 465, 467 (Ten

n. 2003); Clinard v. Blackwoo d , 46 S.W.3d 17 7, 182 (Te nn. 2001) ; Overstreet v. Shoney's, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999).
The record contains evidence that Mr. Spears has alre ady

phy sically

abused Ms . Spears, his son, and his former girlfriend. The general sessions court was properly concerned

about the effect that living in this environment was having on Chelsea and about

the possib ility

that Mr. Sp ears could direct this sort of conduct

at Chelsea at some point. While Ms. Spears introduc ed proof intended to rehabilitate

Mr. Spears, the general sessions court wa s free to discoun t this evidenc e on cre dibility ground s. 6 We must defer to th e tria l cour t’s fa ctual findi ngs because it was the

trial cou rt, not this court, that saw the witnesses and had an opportunity to assess their credibility. Richards v . Liberty Mut. Ins. Co. , 70 S.W.3d 729, 732 (Tenn. 2002); Oceanics Sch., Inc. v. Barbour , 112 S.W.3d 135, 139-40 (Tenn. Ct . App. 200 3); Parks Pro ps. v. Mau ry County , 70 S.W.3d 735, 741 (Tenn. Ct. App. 2001)

. The court’s decision to permit Mr. Spears to have only supervised contact with C helse a appropr iately balances Chelsea’s safety with Mr. Spears’s o pportunit y to develop a

n approp riate relation ship with his step-daughter. Of course, the court may

revisit this restriction as the child ages or should circumstances change.-8- IV. T HE A UTHORI TY TO M AKE M EDICAL D ECISIONS FOR THE C HILD
Ms. Spears also insists that the evidence does no t supp ort the general sessions court’s decision to empower Mr. McEvoy to make medical decisions for Chelsea i f

the parties cannot agree upon the prope

r course of trea tment fol lowing “ full cons ultation.” We disag

ree for two reas ons. Fi rst, we have already

upheld the court’s finding that Ms. Spears had “unrea sonably resist[ed] obtaining medical care and therapy for . . . [Chelsea’s] speechproblem.” Second, Mr. McEvoy has demonstratedthat h e is fu lly capab le of m aking prudent d ecisions regarding his daug hter’s healthcare. Because Ms. Spears has been g iven a role in the decision-making process, we dec line to find that the court abused its discretion by giving Mr. McEvoy

the final decision-making au th or it y.
V.
We affirm the judgmen t and rem and the case to the genera l sessions court for whatever further proceedings may

be required. We also find that Mr. McEvoy is not entitled to be awarded his attorney’s f

ees pu rsuant to T enn. Code Ann. § 36- 5-103(c ) (2001) . We tax the c osts of this appeal to Kimberly Ma

rie Spears and her surety

for which execution, if necessary , may issue.

_____________________________ WI LL IA M C. K OCH , JR. , J.