                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   January 22, 2004 Session

              ROY V. SMITH, II v. GRACE HUTCHISON (BLAIR)

                    Direct Appeal from the Juvenile Court for Dyer County
                           No. 3134 Charles V. Moore, Jr., Judge



                   No. W2003-00214-COA-R3-JV - Filed February 25, 2004


Father filed a petition for an initial determination of custody against the Mother. Father alleged that
he was the fit and proper person for the custody of the child. Based on the evidence presented at
trial, the juvenile court entered a judgment and permanent parenting plan which found that the
Mother was more comparatively fit to continue serving as the primary residential caregiver. Father
appeals the trial court’s judgment. We affirm.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; and
                                        Remanded


DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

Barbara A. Deere and Thomas E. Weakley, Dyersburg, Tennessee, for the appellant, Roy V. Smith,
II.

Dean P. Dedmon, Dyersburg, Tennessee, for the appellee, Grace Hutchison (Blair).

                                             OPINION

        On October 25, 1998, Dominic V. Smith (Nic), was born to Roy V. Smith, II (Father) and
Grace H. Blair (Mother). Father and Mother never married, but Father acknowledged paternity
pursuant to Tenn. Code Ann. §§ 68-3-203(g), 68-3-302, and 68-3-305(b) (2003). For six months,
Father, Mother and Nic resided together. Father testified that he subsequently moved to a
separate residence where he and Mother agreed to a custody arrangement, which was effective
until September 18, 2000. Three days later, Father filed a petition for determination of custody
in the juvenile court and alleged that Mother denied him access to the child, threatened arrest for
kidnaping, resides with another man out of wedlock, allows alcoholic parties to continue late into
the evening, and that Nic is in need of medical treatment.
         In November of 2000, the juvenile court entered a parentage order awarding joint
custody to the parties with Mother’s residence as the primary physical residence pending the
outcome of the case. In March of 2001, the Father filed a proposed permanent parenting plan
resulting in the court entering a temporary custody order whereby the Mother’s residence would
remain the primary physical residence and the Father was allowed visitation according to the
shared parenting guidelines of the twenty-ninth judicial district of Tennessee. In April of 2002,
at the request of Father, the court appointed a guardian ad litem whose report was filed with the
court in August of the same year. The report concluded:

         Both [Mother and Father] undoubtedly care for and love their son and are each fit
         to care for him; however, since [Mother] filed for child support and [Father]
         subsequently filed for custody, the parties’ relationship with one another,
         particularly with respect to their ability to communicate about the care of their
         son, has deteriorated.

                 The Guardian ad Litem is concerned solely with Nic’s best interests.
         Based upon the foregoing, it is the opinion of the Guardian Ad Litem that Nic
         appears to be living in a safe, stable and loving family environment and has done
         so for approximately 2-3 years. Additionally, it appears that Nic has adjusted to
         having visitation with his Father.

        At the trial of the initial custody determination for Nic, the court heard testimony that Nic
was exposed to cigarette smoke and on one occasion, Nic suffered a cigarette burn on his lip.
Additionally, the court heard testimony concerning unexplained bruises on Nic’s body.1 After
reviewing all the testimony and the record as a whole, the trial court entered its judgment. The
court specifically found that the proof offered by the Father was insufficient to prove that Nic had
suffered abuse or neglect at the hands of either party. Ultimately, the court found:

         [T]here is a strong presumption in relation to continuity of placement [of Nic with
         the Mother], such that the [Mother] is more comparatively fit to continue serving
         as the primary residential caregiver of the minor child, [Nic], as she is living in a
         nuclear family unit, in contrast to the [Father], who is a single person who works a
         minimum of five (5) days a week and relies heavily upon his parents for housing
         and childcare.

In addition to the judgment, the court entered a permanent parenting plan. Father timely filed his
notice of appeal.



         1
          An investigator for the Tennessee Department of Children’s Services testified that Nic appeared to have been
coaxed by the Father and his paternal step-grandmother into telling people that the Mother’s new husband was beating
him with a belt. The investigator further testified that she ultimately felt that Nic was neither abused nor under any harm
of abuse.

                                                           -2-
                                          Issue Presented

        The sole issue for this appeal is whether, by the preponderance of the evidence, the trial
court should have determined that the Father was comparatively more fit for custody of the minor
child, Nic, pursuant to Tenn. Code Ann. §§ 36-6-106, -404(b) (2003), thereby awarding primary
physical custody to Father rather than Mother.

                                       Standard of Review

       The standard of our review of a trial court’s determination of custody is set forth in Gaskill
v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996):

                Custody and visitation determinations often hinge on subtle factors, including
       the parents’ demeanor and credibility during the divorce proceedings themselves.
       Accordingly, appellate courts are reluctant to second-guess a trial court’s decisions.
       Trial courts must be able to exercise broad discretion in these matters, but they still
       must base their decisions on the proof and upon the appropriate application of the
       applicable principles of law. D v. K, 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995).
       Thus, we review these decisions de novo on the record with a presumption that the
       trial court’s findings of fact are correct unless the evidence preponderates otherwise.
       Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Doles v. Doles, 848 S.W.2d
       656, 661 (Tenn. Ct. App. 1992).

Gaskill, 936 S.W.2d at 631.

                                  Initial Custody Determination

         It is clear from the judgment of the court that the court viewed this case as the initial
determination of custody and used the comparative fitness analysis in determining what was in
the best interest of the child. See Tenn. Code Ann. § 36-6-106. In the court’s analysis, the court
stated that “pursuant to Gaskill v. Gaskill, 932 S.W.2d 626 (Tenn. Ct. App. 1996), the Court
finds that a parent is not to be judged by a standard of perfection, but rather by the standard of a
human.” Further, “all the allegations of misconduct presented by the [Father] in relation to the
[Mother] occurred prior to [Nic’s birth] and . . . the allegations are so far removed in time that
the Court must look to the present circumstances of the child.” Accordingly, the court did not err
in its legal analysis.

        As for the factual determinations that the trial court made, we are reminded that findings
of fact dependent upon the credibility of witnesses should be accorded great weight by appellate
courts, as the trial court is in the best position to judge issues of credibility. Duncan v. Duncan,
686 S.W.2d 568, 571 (Tenn. Ct. App. 1984). After reviewing the testimony of the parties, the
report of the Guardian ad Litem, and the record as a whole, the evidence does not preponderate
against the findings of the trial court.


                                                 -3-
                                           Conclusion

        In light of the foregoing, we affirm the trial court’s judgment awarding primary physical
custody to the Mother. Costs of this appeal are taxed to the Appellant, Roy V. Smith, II, and his
surety, for which execution may issue if necessary.



                                                     ___________________________________
                                                     DAVID R. FARMER, JUDGE




                                               -4-
