                 IN THE COURT OF APPEALS OF TENNESSEE

                        AT KNOXVILLE
                                                                           F L E
                                                                             I D
                                                                           N o v e m b e r 2 4 ,
                                                                                  1 9 9 8

                                                                           C e c il C r o w s o n ,
                                                                                     J r .
ASHLEY C HRISTINE OLEN and                 ) C/A NO. 03A01-9805-          A p p e lla t e C o u r t
                                                                                   C le rk
CV-00166
STEVEN MICHAEL OLEN,        )
BY: THERESA E. OLEN,        ) JOHNS ON CIR CUIT
                            )
         Appellan t,        ) HON . G. RIC HAR D JO HNS ON,
                            ) JUDGE
v.                          )
                            )
ANGELA ARLENE OLEN ALTHERR, ) AFFIRMED
                            ) AND
         Appellee.          ) REMANDED




H. RA NDO LPH F ALLIN , Moun tain City, for A ppellant.

WILLIAM J. COC KETT, SMITH & COCKETT , Mountain City, for Appellee.




                                     O P I N IO N


                                                          Franks, J.


              In this child custody action, the minor children’s stepmother sought

custody after the death of her husband, who had been the custodial parent. The

natural m other coun ter-claimed for custody , and the Tr ial Judge aw arded cus tody to

the natural mother. The stepmother has appealed.

              At the time the father and mother divorced, there was an award of joint

custody of the children, with primary residential custody in the mother. Subsequently,

the Kansas Social Service System took custody of the children, and in a subsequent
court hearin g in Kan sas, the Co urt determ ined that the m other had fa iled to prope rly

care for the children and was “not economically or emotionally stable enough at the

present time to properly care for the children”, and changed the custody to the father

and orde red the m other to pay $261.00 per mon th as child su pport.

                  On November 24, 1995, the father married Theresa E. Olen

(stepmoth er). Follow ing an evid entiary hea ring, the Trial C ourt was h ighly

complimentary of the stepmother in her love and care of the children. He also found

that the n atural m other k ept in co ntact an d main tained a relation ship w ith the ch ildren.

The Court also observed:

                  Ms. Altherr (natural mother) doesn’t have the education of the
                  children’s stepmother, but in spite of not having the education of the
                  children’s ste pmothe r, and in spite o f a real strugg le in trying to k eep in
                  contact w ith the children and find o ut where the children were, there is
                  no doubt in this Court’s mind that she loves them just as much as Mrs.
                  Olen.

                  The Court concluded that the issue was not the traditional best interest

of the childre n test, but wh ether a child w ould suffer “ substantial ha rm” if custo dy is

awarded or retained in the natural p arent vis a vis a non-pa rent.

                  The standard of review in child custody cases is de novo upon the record

of the Trial Court with a presumption of the correctness of the Trial Court’s findings,

unless e videnc e prepo nderate s otherw ise. Hass v. Knighton, 676 S.W.2d 544, 555

(Tenn . 1984) .

                  We affirm the judgment of the Trial Court in awarding custody of the

two minor children to the natural mother. The evidence does not preponderate against

the Trial Co urt’s conclu sion that the c hildren are n ot in dange r of substan tial harm in

their mother’s custody. The Tennessee Supreme Court has held “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 substial harm to the

child”. In re Adoption of Female Child, (Bond v. McKenzie), 896 S.W.2d 546-548

                                                  2
(Tenn . 1995) . Also see Hawk v. Hawk, 855 S.W.2d 5 73 (Tenn. 1993 ). Only after a

court finds “substantial harm to a child” may it “engage in a general ‘best interest of

the child ’ evaluta tion in m aking a determ ination o f custod y”. Id.

               The stepmother did not meet the burden of proof on the issue of

substantial harm. The stepmother asserts that the children are in danger due to the

lack of the m other’s pare nting skills, w ilfull failure to pay support an d failure to visit

the children regularly, as well as being emotionally unstable.

               The mother admits that her children were removed from her custody, but

disputes that she does not possess parenting skills. She explained that the children

were removed from her upon allegations of sexual abuse. The allegations came the

day after she informed the father that she planned to move with the children, and the

accused was acquitted of any wrongdoing. After the children were removed from her

custod y, the fath er contin ued to le ave the m alon e in her c are wh ile he w as at wo rk.

There was other evidence that her parenting skills were satisfactory, and the children

interacted well with her. Her physicians were of the opinion that she did not have any

psychological problems that would interfere with her care of the children.

               The mother admits that she did not pay child support for several years,

and claims that she could not afford to pay child support and visit her childrens, so she

chose visitatio n. After she joined the n avy she v oluntarily starte d paying c hild

support, and continued to pay support until she could not locate her children. At the

time of the hearing the mother was earning income from two jobs, and intended to live

with her p arents for the time being , as there wa s ample ro om in tha t home fo r herself

and her children. We affirm the award of custody to the natural mother and remand

with the co st of the app eal assessed to the appe llant.




                                               3
                              __________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




                              4
