JODY TRISTAN SMILEY and       )
BEVERLY JO SIMPSON,           )
                              )         Davidson Juvenile
       Plaintiffs/Appellants, )         No. 9619-17777
                              )
VS.                           )
                              )         Appeal No.
STACY MARCH WALKER HANNAH, )            01A01-9704-JV-00164
in behalf of TRISTAN JAMES    )
WALKER,

       Defendant/Appellee.
                              )
                              )
                              )
                                                              FILED
                                                              January 16, 1998
               IN THE COURT OF APPEALS OF TENNESSEE
                                                     Cecil W. Crowson
                    MIDDLE SECTION AT NASHVILLE
                                                    Appellate Court Clerk
         APPEAL FROM JUVENILE COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

              HONORABLE ANDREW J. SHOOKHOFF, JUDGE




Edward J. Gross, #2872
Parkway Towers, Suite 1601
Nashville, TN 37219
ATTORNEY FOR PLAINTIFFS/APPELLANTS

Peggy D. Mathes, #5741
Washington Square Building, Suite 105
214 Second Avenue North
Nashville, TN 37201
ATTORNEY FOR DEFENDANT/APPELLEE


                    AFFIRMED AND REMANDED.



                             HENRY F. TODD
                             PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE

CONCUR IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
JODY TRISTAN SMILEY and       )
BEVERLY JO SIMPSON,           )
                              )                        Davidson Juvenile
       Plaintiffs/Appellants, )                        No. 9619-17777
                              )
VS.                           )
                              )                        Appeal No.
STACY MARCH WALKER HANNAH, )                           01A01-9704-JV-00164
in behalf of TRISTAN JAMES    )
WALKER,                       )
                              )
       Defendant/Appellee.    )




                                      OPINION


       In this legitimation proceeding, the father, Jody Tristan Smiley and his mother, Beverly

J. Simpson, have appealed from the judgment of the Juvenile Court awarding custody of the

child, Tristan James Walker, aged 6, to the mother Stacy March Walker Hannah, and specified

visitation to the father, Jody Tristan Walker.



       A detailed recitation of the background facts and proceedings in the Juvenile Court is

necessary for a disposition of this appeal.



       The child, Tristan, was conceived while the mother, Stacy and the father Jody, were

classmates in high school.



       The father, Jody, has lived with his mother, Mrs. Simpson, all his life in a home in which

his mother operates a beauty salon.



       At the time of the birth of the child, Tristan, the mother of the child, Stacy Walker,

resided with her mother and father, Jerry and Lora Walker.




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       After the birth of the child, the mother of the child, Stacy, moved out of her parent’s

home to the apartment of a cousin from May to July, 1995; and thereafter mother and child lived

with the father, Jody, and his mother, Mrs. Simpson. The mother, Stacy, and child, Tristan,

moved back into the home of her parents from October to Christmas, 1995. From Christmas,

to July 8, 1996, the mother, Stacy, lived with James Hannah. During this period, the mother,

Stacy, frequently entrusted the child to its paternal grandmother, Mrs. Simpson, for day care and

sometimes Stacy stayed with the child in Mrs. Simpson’s home overnight.



       On July 8, 1996, the mother, Stacy, and her live-in companion were married, Neither the

briefs nor the record explain the use of the name, Walker, in identifying the child.



       On July 11, 1996, the present proceeding was initiated, identifying the mother as Stacy

Marcy Walker, and the child as Tristan James Walker. The petition of Jody and his mother

alleged that bruises and contusions had been observed on the lower parts of the child’s body and

that the child was no longer left in the care of its father, Jody, and grandmother, Mrs. Simpson.



       The petition prayed that Jody Smiley be adjudged to be the father of the child, that his

name be changed to Tristan James Smiley and that birth records be adjusted accordingly. The

petition also prayed that custody of the child be entrusted to the petitioners.



       The answer of Stacy Marchelle Hannah, asserted that this was her correct name, admitted

that Jody Smiley was the father of the child, Tristan, denied the alleged bruises and contusions,

and denied that the name of the child should be changed. By counterclaim, the mother prayed

for support for the child and attorneys fees.



       Upon hearing the cause, the Juvenile Referee filed a final order stating:

                       The Court therefore finds and decrees that Jody
               Tristan Smiley is the lawful father of Tristan James Walker,
               and that the relationship of parent and child is hereby
               established between them for all lawful purposes. Upon the

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parties agreement announced in open court, the child’s name
is hereby changed to TRISTAN JAMES SMILEY.
                             ----
        The Court finds that, since his birth, Tristan James
Walker has spent substantial periods of time with both his
mother and father, living in their respective homes for
extended periods.
                             ----
        Since primary care for the child in the father’s home
would be provided by the child’s grandmother, and primary
care for the child in his mother’s home would be provided by
his mother, the Court deems the mother’s home to be the
appropriate choice in this care. Custody of the child is
therefore awarded to the child’s mother.
                             ----
        As of the date of this order, the child’s father shall
begin paying child support as required by the current
Tennessee Child Support Guidelines. Based upon his income
of $328.00 per week, his monthly child support obligation is
hereby established at $243.00 plus 5% clerk’s fee. His first
payment shall cover the period beginning October 15, 1996
and ending November 15, 1996; that payment shall be due no
later than November 1. All payments thereafter shall be due
on the first of each month and will be paid by Income
Assignment Order directed to his employer, Hornbuckle
Plumbing Company. Additionally, Jody Smiley shall be
required to maintain health insurance on the minor child and
shall be responsible for payment of one-half of any medical or
dental expenses not covered by his insurance. Additionally,
Jody Smiley will cooperate with any procedure required for
the child’s mother to obtain a life insurance policy insuring
the life of the father to cover the child support obligation in
the event of his death prior the child’s majority.

       The father shall have visitation as follows:

(1)     Every other weekend beginning at 5:00 p.m. on Friday
        until 6:00 p.m. on Sunday;

(2)     Every Father’s Day from 9:00 a.m. until 6:00 p.m.
        (Except when Father’s Day falls on his scheduled
        weekend);

(3)     Alternating holidays;

(4)     The child’s birthday alternating annually;

(5)     One full week during each of the months of June, July
        and August each year, to be determined by agreement
        of the parties. If no agreement is reached by June 1st
        of each year, the visits shall begin at 6:00 p.m. on the
        first Sunday of each month, and end at 6:00 p.m. on
        the second Sunday of each month;

(6)     Any other time by agreement of the parties.



                              -4-
                       Court costs in this matter, in the amount of $75.00 are
               assessed jointed and severally against the father, Jody Smiley,
               and the paternal grandmother, Beverly Jo Simpson, for which
               execution may issue if necessary.


       The Juvenile Judge affirmed the order of the Referee.



       On appeal to this Court, the appellants present the following issues for review:

                       1.      The Court erred in finding that it was
               impossible to determine which parent had provided the
               majority of support and supplied the majority of parenting
               since the birth of the minor child.

                      2.      The Court erred in finding that there was no
               evidence to indicate that the mother of the child is incapable
               of providing for the needs of the child in her home.

                       3.     The Court erred in finding that both homes
               appeared equal in the capacity to provide a loving and
               appropriate atmosphere for the four (4) year old minor child.
               Therefore, custody should be awarded to the mother rather
               than the father because “primary care for the child in the
               father’s home would be provided by the child’s
               grandmother.”


       Appellants first complain of the finding that it was impossible to determine which parent

had provided the majority of support and parenting. Rule 6(a)(1) of the Rules of this Court

requires the appellant cite the page of the record where erroneous action of the Trial Court is

recorded. No such citation is found in appellant’s brief. No such erroneous action is found in

the record.



       The first issue therefore does not present ground for reversal.



       Appellants next complain that the Juvenile Court failed to find that Mrs. Hannah was

incapable of providing for the child in her home. i.e., that she was competent to care for the

child. There is no citation to the record supporting this complaint, and the alleged finding is not

found in the record.




                                               -5-
        No basis is found for reversal for this alleged error.



        Finally, appellants insist that the Trial Court found that custody by the mother was

preferable to custody by the father because the mother was a parent of the child and the

grandmother was not. Until shown otherwise, courts must assume that parents are more suitable

custodians because of the closer blood relationship and the natural tendency of a child to look

to its parents for love and protection.



        The evidence regarding the source of the child’s bruises is controverted. Mrs. Simpson

testified that the child was not injured while in petitioners custody and implied, (but did not

prove), that Mr. Hannah perpetrated the injuries.



        Mr. Hannah’s response to the hearsay accusation of the child was, “maybe I did and

maybe I didn’t.” However, the refusal to admit or deny under the circumstances was not an

admission of guilt. The court should not have accepted such a noncommittal response, but, upon

proper request, should have required an unconditional answer.



        The mother of the child cites authorities holding that in adoptions and parental rights

termination, a natural parent must be proven unfit before being deprived of parental rights.

However, the present case is a legitimation case in which the contenders are both natural parents,

the maternal grandmother has made common cause with her son, the natural father of the child,

and the husband of the mother of the child has testified in support of her claims.



        In the present case, the Trial Court found that neither natural parent of the child has been

proven unfit. Even though the fitness of the maternal grandmother and the stepfather have not

been shown to be equal, the Trial Judge was not able to find grounds to declare the natural

mother unfit because of the conduct of her husband. The evidence does not preponderate against

the finding of the Trial Court as to fitness of the natural parents, and the evidence does not justify



                                                 -6-
a reversal of the exercise of discretion by the Trial Judge in respect to principal custody. The

decision of the Trial Court in respect to the credibility and weight of testimony is generally

entitled to great weight on appeal. TRAP Rule 13(d); Grand Valley Lakes Property Owners

Assn., Inc., v. Cary, Tenn. App. 1994, 897 S.W.2d 262; Gilliam v. Gilliam, Tenn. App. 1988,

776 S.W.2d 81.



         The most appropriate admonition to all parties is found in Nale v. Robertson, Tenn. 1994,

871 S.W.2d 675 as follows:

                        No reason occurs to this Court why a fit parent should
                be denied the privilege of parenthood merely because of birth
                out of wedlock. As previously stated, the denial of privilege
                of parenthood is based upon termination for unfitness.
                                             ----
                        The Court recognizes that, in this case as in many
                others, resolution of the legal issues does not mediate the
                harm experienced by the parties. We, outside our role as
                judges, can only implore the healing balm of love which all
                the parties obviously have bestowed upon David.


         All parties should be aware of the continuing power of the Trial Court to adjudge custody

and visitation of this child in accordance with their future behavior and the best interests of the

child.



         The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

appellants and their surety. The cause is remanded to the Trial Court for further proceedings.

                            AFFIRMED AND REMANDED.



                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



BEN H. CANTRELL, JUDGE


CONCUR IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE

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