                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   October 10, 2000 Session

              TONYA PETRECE RAY v. WILLIAM MARTIN RAY

                      Appeal from the Circuit Court for Davidson County
                           No. 99D-662     Carol Soloman, Judge


                    No. M2000-00895-COA-R3-CV - Filed October 5, 2001


This appeal involves a dispute over the custody of three-year-old twins between their biological
father and the former husband of their biological mother. The biological father intervened in the
divorce proceeding between the twins’ mother and her husband in the Circuit Court for Davidson
County seeking custody of the children. Following a bench trial, the trial court declared the parties
divorced and awarded custody of the parties’ two biological children to the mother’s former husband.
The trial court also concluded that the mother’s former husband was comparatively more fit than the
twins’ biological father to have custody of the twins. In response to the biological father’s Tenn. R.
Civ. P. 59.04 motion suggesting that it had applied the wrong legal standard when it determined the
custody of the twins, the trial court found that placing the twins with their biological father would
expose them to a “substantial risk and danger of great harm.” On this appeal, the twins’ biological
father takes issue with the evidentiary foundation of the trial court’s refusal to grant him custody of
his children. We have determined that the record does not contain clear and convincing evidence
to support the trial court’s conclusion that placing these children in their biological father’s custody
will expose them to substantial harm. Accordingly, we vacate the portion of the decree awarding
custody of the twins to their biological mother’s former husband.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part
                                   and Vacated in Part

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Clark Lee Shaw, Nashville, Tennessee (on appeal), for the appellant, Stephen Eric Staggs.

John M. L. Brown, Nashville, Tennessee, for the appellee, William M. Ray.

                                              OPINION

                                                   I.

         William M. Ray and Tonya P. Ray began seeing each other sometime prior to 1992. Their
first child was born in October 1992. Ms. Ray was nineteen years old, and Mr. Ray was twenty-one.
They were married in Lawrenceburg on May 28, 1994, after Ms. Ray discovered that she was
pregnant again. Their second child was born in October 1994. Mr. Ray held down several jobs to
support the family, and Ms. Ray was the primary caregiver for the two children.

        The parties’ relationship was punctuated by frequent arguments and fights. They separated
in early 1997, and Ms. Ray actually filed for divorce. She also began an affair with Stephen Eric
Staggs whom she had met through mutual friends. Mr. Staggs had just recently received a less than
honorable discharge from the Navy. He was also married to his high school sweetheart, but they
were estranged, and Mr. Staggs was then living with his mother. Ms. Ray had sex with both Mr. Ray
and Mr. Staggs during April 1997 and sometime in May or June, she discovered that she was
pregnant.

        Ms. Ray and Mr. Staggs parted company on particularly bad terms in July or August 1997.
She told him that there was a chance that he was not the father, and he told her that he hated her and
never wanted to see her again. Approximately six weeks later, Ms. Ray reconciled with Mr. Ray.
She told him that she was pregnant with twins and that he could possibly be the father. Mr. Ray told
her that he would accept the children whether they were his or not. They also decided that they
should have the genetic testing performed, not to determine parentage, but for future medical
purposes. However, they were advised to defer the testing until after the babies were born.

        Ms. Ray gave birth to twins on December 19, 1997. They were approximately one month
premature. Ms. Ray did not inform Mr. Staggs of the birth because they had not spoken to each
other since they broke up. Mr. Staggs claims to have made some effort to contact Ms. Ray, but his
attention was increasingly focused on Emily Catherine Moore whom he had met in late December
or early January. The Rays had genetic testing performed in February 1998. However, Ms. Ray had
the envelope containing the results sealed, and Mr. Ray had the sealed envelope placed in his
mother’s safety deposit box at the bank.

        By this time, both Mr. Ray and Ms. Ray were working at the Vanderbilt Medical Group.
They worked at raising the four children. Mr. Ray did not treat the twins differently from the two
older children. The Rays did not discuss the parentage of the twins, but Ms. Ray’s “mother’s
intuition” led her to believe that Mr. Staggs, not Mr. Ray, was the children’s father. She did not
share her belief with Mr. Ray.

        By February 1999, the Rays’ relationship had again deteriorated. They had a particularly ugly
confrontation on February 28, 1999, apparently precipitated by a visit by Ms. Ray’s sister who was
living in Texas. Ms. Ray angrily told Mr. Ray that he was not the twins’ father. Both parties filed
petitions for protection on March 2, 1999, and Ms. Ray filed a complaint for divorce in the Circuit
Court for Davidson County on March 3, 1999.1



         1
           Ms. Ray alleged in her complaint that four children were born of the marriage. She corrected this misstatement
in an amend ed petition filed on Ma y 7, 1999 , when she alle ged that Mr. Ray was not the father of the twins and,
therefore, that the y should be placed in he r custody.

                                                          -2-
        Following a March 25, 1999 hearing on the petitions for protective orders, the trial court
granted Mr. Ray a protective order, directed Ms. Ray to move out of the marital residence, and
granted the parties shared custody of all four children with Mr. Ray as the primary physical
custodian. Ms. Ray took issue with this order, and in a “motion for new trial” insisted that the trial
court should not have awarded Mr. Ray primary physical custody of the twins because paternity tests
had rebutted the presumption that he was their biological father. She also got word to Mr. Staggs
through his grandmother that he was the biological father of the twins.

         Upon receiving word from Ms. Ray about the twins, Mr. Staggs obtained his own genetic
testing that confirmed that he was their biological father. In May 1999, he sought permission to
intervene in the Rays’ divorce proceeding and to file a complaint to establish paternity. 2 The trial
court granted these motions in June 1999, and Mr. Staggs immediately requested temporary custody
of the twins. Both Mr. Ray and Ms. Ray opposed his request for custody, and Mr. Ray filed a
counterclaim against Mr. Staggs seeking retroactive child support. Thereafter, Mr. Staggs requested
temporary visitation with the twins. The Rays also opposed this request. Following a hearing on
August 6, 1999, the trial court entered an order concluding that Mr. Staggs was the twins’ biological
father and establishing a visitation schedule for him that enabled him to have unsupervised visits
with the children for four hours on Thursday afternoons and eight hours on Saturday. The trial court
denied Mr. Staggs’s request for overnight visitation because he and Emily Moore were not married
at the time.

        At about this time, Ms. Ray became involved with a childhood friend named Richard Moss.
In her words, they “went to a place where we should not have went,” and Ms. Ray soon discovered
that she was pregnant with Mr. Moss’s child. In the meantime, Mr. Staggs and Ms. Moore decided
to move up their wedding date to bolster his request for overnight visitation with the twins. Mr.
Staggs and Ms. Moore were married on August 27, 1999 in a civil ceremony, and approximately two
weeks later, Mr. Staggs filed a motion seeking overnight visitation. Both the Rays again opposed
this motion. Approximately three months later, Mr. Staggs requested overnight visitation on
November 20, 1999 to enable the twins to be present when he and his new wife conducted a
“traditional wedding ceremony.” On November 9, 1999, the trial court replaced Mr. Staggs’s four-
hour Thursday visitation with visitation from Tuesday afternoon until Wednesday morning. The trial
court also permitted the overnight visitation to coincide with Mr. Staggs’s and Ms. Moore’s
traditional wedding.

        The trial court conducted a bench trial on December 9 and 10, 1999. Mr. Ray and Ms. Ray
stipulated that each of them had grounds for divorce and requested that they be declared divorced
in accordance with Tenn. Code Ann. § 36-4-129(b) (Supp. 2000). They also agreed on the financial
aspects of their divorce. Except for these issues, the entire hearing focused on the three parties’
dispute over custody of the children. While Ms. Ray conceded that Mr. Ray was a good father, she
opposed awarding him custody of their two older children because his work hours were too long, and


         2
           Mr. Staggs’s litigation e xpenses we re being und erwritten by his girlfrie nd’s father. By this time, Mr. Staggs
and Emily Moore had decided to marry, and Mr. Staggs had decided that he wanted to take on the responsibility for
raising the twins. Both Ms. Moo re and her parents supported this decision.

                                                            -3-
she insisted that he should not receive custody of the twins because he was not their biological father.
She also insisted that Mr. Staggs was completely unfit to take on the responsibilities associated with
being the twins’ custodial parent. For his part, Mr. Ray agreed that Ms. Ray could be a good mother
when she decided to be but that she should not be awarded custody of any of the children because
of her personal conduct and her demonstrated lack of attention to the children’s needs. He also
asserted that Mr. Staggs was not fit to have custody of the twins. Mr. Staggs asserted that he and his
new wife could provide the twins with a more stable, nurturing home than either Mr. Ray or Ms. Ray
could provide.

        The trial court undertook to resolve the custody question by first comparing the custodial
fitness of Mr. Ray with the custodial fitness of Ms. Ray. The trial court concluded that Ms. Ray was
“not a fit and proper person” to have sole custody of any of her four children. Then the trial court
turned to the competing custody claims of Mr. Ray and Mr. Staggs. The trial court determined that
Mr. Ray was comparably more fit than Mr. Staggs to have custody of the twins even though he was
not their biological father. Accordingly, the trial court granted custody of the twins to Mr. Ray
because “there are no fit natural parents and . . . Mr. Ray has been the stable source to the children
throughout their short lives.” The trial court also determined that “[t]he emotional ties of the
children to each other are so strong that separation would be detrimental to them.” In addition to its
custody decisions, the court directed Mr. Staggs to pay $9,906 in back child support from the date
of the twins’ birth and granted him four hours of supervised visitation in Mr. Ray’s home every other
Sunday.

         Mr. Staggs hired a new lawyer who filed a Tenn. R. Civ. P. 59.04 motion to alter or amend
challenging the legal and factual basis of the trial court’s custody decision. Ms. Ray also filed a
motion to alter or amend complaining that the trial court had awarded her less than standard
visitation with the two older children and that the trial court had erred by awarding custody of the
twins to Mr. Ray because he was not their biological father and because the trial court had failed to
find that the twins “would suffer substantial harm if placed with either biological parent.” In
response to these motions, the trial court filed a “memorandum of findings and order” on April 3,
2000 stating, in part:

                        In addition to those reasons enumerated in the Memorandum
                and Order previously filed and entered by this Court, and for some of
                the following reasons listed herein, this Court further finds that there
                is a strong likelihood of substantial harm to the minor children
                because of both natural parents’ use of drugs, instability in
                relationships, the natural father’s history of family mental illness, lack
                of father’s connection with his family, anger undisputed in natural
                father, Mother’s living with an abusive man, mother’s pregnancy by
                another man out of wedlock, Mother’s allowing children in bed with
                her and a man to whom she is not married, natural Father’s lack of
                interest in trying to determine paternity until the children were almost
                two years old, Father’s taking no part in the young children’s
                formative years and leaving them to fend for themselves, and Father


                                                   -4-
                  failing to pay adequate support even after he learned he was the
                  Father, and Mother leaving the children with a known pedofile [sic].
                  This Court finds that for all those reasons, it is in the best interest of
                  the minor children that they remain with the only stable force in their
                  life, the legal father, Mr. Ray. This Court previously found both
                  natural parents to be unfit. This Court still declares them to be unfit
                  even with the attorney for the natural Father, Mr. Staggs, stating in
                  open Court that as soon as this Order is final, he intends to file
                  another Petition for custody. This Court would not be doing her duty
                  to leave two helpless children with unfit parent [sic] and in harm’s
                  way.

In addition to this language, the trial court wrote by hand that

                   This court finds by very clear and convincing proof that there is a
                   substantial risk and danger of great harm to these children if placed
                   with the natural parents.

Approximately one month after concluding that placing the twins with Mr. Staggs would expose
them to a substantial risk of danger, the trial court permitted Mr. Staggs to have eight days of
extended visitation with them for an extended vacation with the Moore family.

                                                            II.
                                          THE CUSTODY OF THE TWINS

        This appeal focuses on the competing custody claims of Mr. Staggs and Mr. Ray.3 Mr.
Staggs asserts that, notwithstanding the trial court’s “attempt to ‘pad’ its initial ruling, in anticipation
of this appeal,” the evidence does not support the trial court’s conclusion that he is unfit to have
custody of his children and that giving him custody would expose them to a substantial risk of
danger. We agree. The record does not contain clear and convincing evidence that, based on the
circumstances existing at the time of the December 1999 trial, granting Mr. Staggs custody of his
two-year-old twins would expose the children to a risk of substantial harm.

                                                            A.

        The legal standards applicable to custody disputes between a biological parent and a third
party differ markedly from those applicable to custody disputes between biological parents. The
comparative fitness analysis commonly associated with custody disputes between biological parents
cannot be used because it fails to take into account that the custody claims of biological parents and
the custody claims of third parties do not have the same legal weight. A biological parent’s custody
claims carry more weight than those of a third party because only biological parents have a


         3
           Ms. Ray has not appealed either the custody or the visitation decisions, and Mr. Staggs has not taken issue with
the $9,90 6 judgm ent against him fo r back child support.

                                                           -5-
constitutionally protected interest in raising their children.4 Stubblefield v. State ex rel. Fjelstad, 171
Tenn. 580, 587-88, 106 S.W.2d 558, 561 (1937); Doles v. Doles, 848 S.W.2d 656, 660 (Tenn. Ct.
App. 1992).

        A biological parent’s interest in the care, custody, and control of his or her child is among
the oldest of the judicially recognized fundamental liberty interests. Troxel v. Granville, 530 U.S.
57, 65, 120 S. Ct. 2054, 2060 (2000). It is protected not only by the Due Process Clause of the
Fourteenth Amendment, Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394 (1982), but
also by Tenn. Const. art. I, § 8. Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). Accordingly,
biological parents have a constitutionally protected interest in raising their children free from
unwarranted state intervention. Doe v. Sundquist, 2 S.W.3d 919, 926 (Tenn. 1999); In re Swanson,
2 S.W.3d 180, 186 (Tenn. 1999); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996).
The Tennessee Supreme Court has extended this protection to the biological parents of nonmarital
children as long as they have developed a substantial relationship with the child and have not been
found to be unfit. Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995); Nale v. Robertson, 871
S.W.2d 674, 680 (Tenn. 1994).

        Persons who are not a child’s biological parent do not have the same constitutionally
protected parenting interests possessed by a biological parent. Accordingly, when faced with
competing custody claims by a biological parent and a third party, the courts must favor the
biological parent. The courts cannot award custody to a third party instead of a biological parent
unless the third party can demonstrate that the child will be exposed to substantial harm if custody
is awarded to the biological parent. In other words, a biological parent cannot be denied custody
unless he or she is found to be unfit.5

        The courts have not undertaken to define the circumstances that pose a risk of substantial
harm to a child.6 These circumstances are not amenable to precise definition because of the
variability of human conduct. However, the use of the modifier “substantial” indicates two things.




         4
          Adoptive parents hav e the same inte rests as biolo gical paren ts. Simmons v. Simmons, 900 S.W.2d 682, 684
(Tenn. 1995). Accordingly, the references to biological parents in this opinion are not intended to imply that adoptive
parents do not have sim ilar rights.

         5
           The necessity of finding parental unfitness distinguishes custody disputes between biological parents and third
parties from custody disputes between biological parents. The compar ative fitness analysis used to resolve custody
disputes between b iological pa rents does n ot require a finding of pare ntal unfitness. Gaskill v. G askill, 936 S.W.2d 626,
631 (Tenn. Ct. App . 1996). In contrast, a court can not favor a third party over a bio logical parent unless the court has
determined that the biolog ical parent is un fit. In re Adoption of a Fem ale Child , 896 S.W.2d 546 , 547-48 (Tenn. 1995);
Hawk v. Hawk, 855 S.W.2d at 581.

         6
          This court has ob served that a finding of substa ntial harm to a child includes “a finding of parental unfitness
or of dependency and neglect of the child . . ..” Eason v. Bruce, No. W2000-01326-COA-R3-CV, 2001 WL 502834,
at *2 (Tenn. Ct. App. May 10, 2001) (No Tenn. R. App. P. 11 application filed).

                                                             -6-
First, it connotes a real hazard or danger that is not minor, trivial, or insignificant.7 Second, it
indicates that the harm must be more than a theoretical possibility. While the harm need not be
inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm
will occur more likely than not.

        The courts have likewise not provided clear directions regarding the amount of proof required
to establish that a child will be exposed to substantial harm if he or she is placed in the custody of
a biological parent rather than a third party. Over sixty years ago, in a suit involving a custody
dispute between a four-year-old child’s biological father and her great-grandfather and great-uncle,
the Tennessee Supreme Court held that the father’s unfitness must be established by “a clear
preponderance of convincing proof.” Stubblefield v. State ex rel. Fjelstad, 171 Tenn. at 587, 106
S.W.2d at 560. We have likewise invoked this standard of proof in other custody disputes between
parents and third parties. Moore v. Moore, No. 03A01-9708-CH-00382, 1998 WL 758995, at *3
(Tenn. Ct. App. Oct. 30, 1998) (No Tenn. R. App. P. 11 application filed); Henderson v. Mabry, 838
S.W.2d 537, 540 (Tenn. Ct. App. 1992); Dunavant v. Dunavant, 31 Tenn. App. 634, 645, 219
S.W.2d 910, 914-15 (1949).

        The reason for adopting this heightened burden of proof in custody disputes between a
biological parent and a third party is the same as the reason for adopting a heightened standard in
termination of parental rights cases. The state and federal constitutions require a heightened standard
because of the possible effects the proceeding might have on a biological parent’s parenting rights.
O’Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn. Ct. App. 1995). To prevent unwarranted
termination or interference with a biological parent’s parenting rights,8 the grounds for judicial action
must be established by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1); In
re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000); State Dep’t of Human Servs. v. Defriece, 937
S.W.2d 954, 960 (Tenn. Ct. App. 1996). Evidence that satisfies this heightened burden of proof
eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn
from the evidence, Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997); Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992); In re C.D.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000).
It should produce in the fact-finder’s mind a firm belief or conviction regarding the truth of the
allegations sought to be established. O’Daniel v. Messier, 905 S.W.2d at 188.

       The “clear preponderance of convincing proof” standard traditionally associated with custody
disputes between biological parents and third parties is, as a practical matter, the same as the “clear


         7
            The Tennessee General Assembly has identified some of the circumstances that might cause substantial harm
to a child. The grounds for terminating parental rights in Tenn. Code Ann. § 36-1-113(g) (Supp. 2000) provide examples
of circumstances that cause substantial harm to a child. Other examples can be found in the parental relocation statutes
[Tenn. Code Ann. § 36-6-108(d) (Supp . 2000)], the grandparent visitation statutes [Tenn. Code Ann. § 36-6-306(b)(1)
(Supp. 2000)], and the statutory definition of “dependent and neglected child” in Tenn. Code Ann. § 37-1-102(b)(12)
(Supp. 2000). While these statutes are not intended to be the exclusive source for circumstances causing substantial harm
to children, they provide helpful guida nce to the courts.

         8
         In re L.S.W., No. M2000-01935-COA-R3-JV, 2001 W L 1013079, at *4 (Tenn. Ct. App. S ept. 6, 200 1); In re
M.W.A., 980 S.W.2d 620 , 622 (Tenn. Ct. App. 1998).

                                                          -7-
and convincing evidence” standard associated with termination of parental rights cases.
Accordingly, to avoid the risk of confusion between the heightened burden of proof required by this
standard, and the standard of appellate review used to review cases of this sort, we will characterize
the burden of proof in these cases as the “clear and convincing evidence” standard.

        Because this heightened burden of proof differs from the customary burden of proof in civil
cases, we must adjust the usual standard of review of factual findings found in Tenn. R. App. P.
13(d). In cases such as the one before us, we will review the trial courts specific findings of fact in
accordance with Tenn. R. App. P. 13(d). Accordingly, the trial court’s findings of fact will be
presumed to be correct unless the evidence preponderates otherwise. Then we will determine
whether the facts, as found by the trial court, clearly and convincingly establish that a child will be
exposed to a risk of substantial harm if he or she is placed in a biological parent’s custody. In re
L.S.W., 2001 WL 1013078, at *5; In re T.L.P., No. W1999-01940-COA-R3-CV, 2001 WL 987152,
at *2 (Tenn. Ct. App. Aug. 22, 2001).

                                                  B.

        We now turn to the substance of the trial court’s custody decision. Like any other custody
decision, we recognize at the outset that trial courts have broad discretion to fashion custody
arrangements that best suit the unique circumstances of each case. Parker v. Parker, 986 S.W.2d
557, 563 (Tenn. 1999). Our role is not to “tweak [these decisions] . . . in the hopes of achieving a
more reasonable result than the trial court.” Rather, it is to determine whether the trial court’s
decision “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.” Eldridge v. Eldridge, 42 S.W.3d 82,
88 (Tenn. 2001).

        Custody decisions should not be used to punish parents for past misconduct or to award
parents for exemplary behavior. Rice v. Rice, 983 S.W.2d 680, 683 (Tenn. Ct. App. 1998);
Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997); Gaskill v. Gaskill, 936
S.W.2d t 630. The courts understand that persons are able to turn their lives around, see In re Askew,
993 S.W.2d 1, 2 (Tenn. 1999). Accordingly, custody decisions should focus on the parties’ present
and anticipated circumstances, Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2
(Tenn. Ct. App. May 25, 1995) (No Tenn. R. App. P. 11 application filed), and on the parties’
current fitness to be custodians of children. See Elder v. Elder, No. M1998-00935-COA-R3-CV,
2001 WL 1077961, at *2 (Tenn. Ct. App. Sept. 14, 2001); Gorski v. Ragains, No. 01A01-9710-GS-
00597, 1999 WL 511451, at *3 (Tenn. Ct. App. July 21, 1999) (No Tenn. R. App. P. 11 application
filed).

        The courts may and should consider past conduct to the extent that it assists in determining
a person’s current parenting skills or in predicting whether a person will be capable of having
custody of a child. However, the consideration of past conduct must be tempered by the realization
that the persons competing for custody, like other human beings, have their own virtues and vices.
Gaskill v. Gaskill, 936 S.W.2d at 630. Biological parents are not required to demonstrate they are
perfect before they can be granted custody of their children. Richard v. Richard, No. M1999-02797-


                                                 -8-
COA-R3-CV, 2000 WL 679233, at *5 (Tenn. Ct. App. May 25, 2000) (No Tenn. R. App. P. 11
application filed); Rice v. Rice, 983 S.W.2d at 682-83.

         The trial court based its decision to deny Mr. Staggs custody on eleven findings regarding
(1) his efforts to develop a substantial relationship with the twins, (2) his relationship with his father
and brother, (3) his personal conduct, and (4) his relationship with Mr. Ray. Despite the largely
undisputed evidence that Mr. Staggs had turned over a new leaf with the help of his wife and her
family, the trial court apparently decided that his transformation was too short-lived to outweigh his
prior conduct.9 We have determined that the factors relied upon by the trial court do not establish
clearly and convincingly that Mr. Staggs would be an unfit parent or that placing the twins in his
custody would expose them to a risk of substantial harm.

                                                 1.
             Mr. Staggs’s Efforts to Develop a Substantial Relationship With the Twins

        Three of the trial court’s reasons for finding Mr. Staggs unfit are: (1) his “lack of interest in
trying to determine paternity until the children were almost two years old,” (2) his “taking no part
in the young children’s formative years and leaving them to fend for themselves,” and (3) his “failing
to pay adequate support even after he learned he was the [f]ather.” Each of these findings is relevant
to the important threshold question regarding the nature of Mr. Staggs’s relationship with the
children. As the biological father of nonmarital children, Mr. Staggs will be permitted to invoke his
parental rights only if he has developed a substantial relationship with his children or he has
attempted in good faith to do so. Petrosky v. Keene, 898 S.W.2d at 728; State ex rel. Cihlar v.
Crawford, 39 S.W.3d 172, 182 (Tenn. Ct. App. 2000); In re Hood, 930 S.W.2d 575, 578-79 (Tenn.
Ct. App. 1996).

        When Ms. Ray was pregnant with the twins, both Mr. Ray and Mr. Staggs knew that she had
had sex with each of them. She told both of them that they could be the father. After her five-month
relationship with Mr. Staggs ended, Ms. Ray returned to Mr. Ray. While they did not move from
the house where Mr. Ray had been living, Mr. and Ms. Ray obtained an unlisted telephone number.
Ms. Ray did not attempt to contact Mr. Staggs because “everything was going okay” with Mr. Ray.
For his part, Mr. Staggs attempted to find Ms. Ray by telephone at her old telephone number, by
visiting where he thought she lived, and by trying to find her through mutual friends. He was
unsuccessful. As time passed without any word from Ms. Ray, Mr. Staggs assumed either that Ms.
Ray had miscarried or that the children were not his.

        Mr. Staggs learned in March 1999 that the twins had been born and that Ms. Ray was
asserting that he was their father. He promptly sought genetic testing in April 1999 and moved to
intervene in the Rays’ pending divorce proceeding one month later after the tests confirmed that he
was the twins’ biological father. He has been exercising unsupervised visitation with the children


         9
         The trial court noted in its first memorandum opinion that “Mr. [Staggs] has only been stable for a three month
period.” We assume that the trial court was referring to the period of time following Mr. Staggs’s marriage in A ugust
1999.

                                                          -9-
since August 1999. While he expressed some reluctance about paying retroactive child support, the
record contains no evidence that Mr. Staggs has refused to comply with any court order regarding
support or visitation.

         When Mr. Staggs first sought to intervene in this case in May 1999, he had virtually no
contact with the children. At that point, there may have been a substantial question regarding
whether he was entitled to invoke his rights as a biological parent either because he did not have a
substantial relationship with the children or because he had not made good faith efforts to establish
a substantial relationship. However, as a result of the trial court’s decision to give Mr. Staggs
visitation rights, he had developed a relationship with the children by the time of the trial in
December 1999. The trial court has not found that Mr. Staggs’s relationship with the twins is
insubstantial and, in fact, has reinforced the relationship by granting Mr. Staggs continuing visitation
rights. In light of these developments, the record does not contain clear and convincing evidence that
Mr. Staggs does not presently have a substantial relationship with the children. Accordingly, the trial
court erred by basing its custody decision on Mr. Staggs’s efforts, or lack of efforts, to develop a
substantial relationship with the parties’ children prior to March 1999.10

                                                   2.
                               Mr. Staggs’s Relationship With His Family

        The trial court also decided that Mr. Staggs would be an unfit parent because of (1) the
“history of family mental illness” and (2) his “lack of . . . connection with his family.” It is unclear
precisely how either of these factors reflects on Mr. Staggs’s fitness because the record contains no
evidence that he exhibits any sign of mental illness or that his estranged relationship with his father
and brother colors his parenting ability.

       Mr. Staggs was extremely close to his mother; so close that he sought an early discharge from
the Navy to be with her when she fell ill. His father and one of his brothers are mentally ill, and Mr.
Staggs has been estranged from them for some time because he views them, with some cause, as
negative influences in his life. He maintains a close relationship with another brother and his family
and with his grandparents, a cousin, and an uncle. Without more, this sort of family estrangement
does not provide clear and convincing evidence that placing Mr. Staggs’s children in his custody will
expose them to substantial harm.

                                                    3.
                                      Mr. Staggs’s Personal Conduct

        The trial court also based its custody decision on (1) Mr. Staggs’s admitted use of illegal
drugs, (2) his smoking, (3) his anger, (4) his “instability in relationships,” and (5) his decision to live
with his present wife before they were married. All of these matters are relevant to a custody



         10
           The evidence likewise does not establish clearly and convincingly that Mr. Staggs’s efforts prior to March
1999 to establish his relationship with the twins were unreasonable or not in good faith.

                                                        -10-
determination. However, the evidence regarding each of these matters indicates that they do not
currently undermine Mr. Staggs’s fitness to have custody of his children.

         By the end of its consideration of the case, the trial court had received undisputed evidence
(1) that Mr. Staggs had not used marijuana or any other illegal drug since the spring of 1997, (2) that
he had married his fiancée in August 1999, and (3) that he and his new wife had stopped smoking
because they understood that smoking aggravated the children’s eczema and asthma. Accordingly,
the evidence of this past problematic conduct does not demonstrate clearly and convincingly that
placing the children in Mr. Staggs’s custody would presently expose them to substantial harm.

         The remaining two matters singled out by the trial court were Mr. Staggs’s “anger” and the
“instability” in his relationships. The fact that Mr. Staggs had been married twice by the time he was
twenty-five years old reflects on his maturity when he married his high school sweetheart while
stationed overseas in the Navy. However, it sheds little light on Mr. Staggs’s current maturity or the
stability of his current marriage.

        Likewise, the evidence of Mr. Staggs’s “anger” is anecdotal and unremarkable. It appears
to involve only two circumstances. The first was a single incident when Mr. Staggs purportedly
grabbed his four-year-old nephew’s arm and yelled at him while placing him in time out. The second
is Ms. Ray’s observation that Mr. Staggs was, at times, “stern” with her two older children while
they were living together in 1997. These incidents are not evidence of a continuing course of
conduct that reflects on Mr. Staggs’s ability to deal with small children. These incidents are de
minimis and are certainly not inconsistent with the conduct one might expect from a 25-year-old
male finding himself in a predicament like the one in which Mr. Staggs found himself in 1997. The
parties’ circumstances in 1999 are far different from those in 1997, and accordingly Mr. Staggs’s
behavior in 1997 does not appear to be an accurate predictor of his behavior in 1999 and thereafter.

        The evidence presented at the December 1999 hearing regarding Mr. Staggs does not clearly
and convincingly depict a person who would be an unfit parent. By the time of the hearing, Mr.
Staggs had held a well-paying job for over eighteen months and had earned the trust and respect of
his employer. He also been married to a woman he had been dating for approximately eighteen
months, and he had been fully integrated into her family. He had earned the admiration and respect
of his wife’s parents for his honesty and tenacity. He had also gained experience with young
children and was serving as a volunteer coach for a YMCA youth basketball program. In light of
this evidence, we find that the trial court placed undue weight on Mr. Staggs’s past conduct rather
than on his current fitness to have custody of his children.

                                               4.
                            Mr. Staggs’s Relationship With Mr. Ray

        As a final matter, the trial court based its decision that Mr. Staggs is unfit to have custody
of his children on his candid admission that he did not desire Mr. Ray to play a continuing role in
the children’s lives. The trial court viewed this attitude as contrary to the children’s best interests.
While that may very well be true, Mr. Staggs’s attitude is not unique to this case. It is a common,


                                                 -11-
albeit regrettable, part of custody disputes not only between a biological parent and a third party but
also between biological parents.

        Neither Mr. Ray nor Mr. Staggs attempted to conceal their dislike for each other. Their
attitudes most likely stem from their competition for Ms. Ray’s favors in 1997. Mr. Ray, rendered
a cuckold by Mr. Staggs, carried the battle to his wife’s lover at every turn. After the trial court
permitted Mr. Staggs to intervene in this proceeding, Mr. Ray vigorously opposed all of Mr. Staggs’s
efforts to obtain custody and even visitation with the twins. The relations between the two men
became so strained that Mr. Staggs’s lawyer and father-in-law advised him to avoid having any direct
dealings with Mr. Ray. Accordingly, to keep tensions in check, Mr. Staggs’s wife dealt with Mr. Ray
on most visitation matters.

        One of the inevitable consequences of a custody decision is that the custodial parent receives
control over his or her children’s relationship with others. While a custodial parent cannot interfere
with a child’s relationship with his or her other biological parent, he or she may restrict or even
prevent third parties, even grandparents and other family members, from maintaining a relationship
with the children. The courts cannot interfere or abridge this custodial prerogative without a
compelling reason. See Nash-Putnam v. McCloud, 921 S.W.2d at 175; Nale v. Robertson, 871
S.W.2d at 678; State ex rel. Cihlar v. Crawford, 39 S.W.3d at 182.

        In cases of this sort, a biological parent’s expressed intention regarding how he or she intends
to exercise his or her parental prerogatives is relevant to the question of custodial fitness. However,
these intentions take on controlling significance only when the record contains evidence that
exercising the parental rights in the intended manner will cause substantial harm to the child.

         Mr. Staggs’s expressed intention to deny Mr. Ray continuing visitation with the children
could conceivably harm the children in two ways. First, the children might be emotionally harmed
by being separated from the most significant male figure they have had in their young lives. Second,
they could be harmed by being separated from their siblings. We can only speculate about the
nature, extent, and duration of the harm that might befall the twins if they are separated from Mr.
Ray and their siblings because the record contains no evidence, expert or otherwise, regarding what
the possible effects of placing the children in Mr. Staggs’s custody might be. As a general matter,
clear and convincing evidence of the sort of psychological harm that would be severe enough to
justify denying custody to a biological parent should take the form of expert testimony. Accordingly,
we conclude that the present record lacks clear and convincing evidence that the children will be
substantially harmed if Mr. Staggs decides not to permit Mr. Ray to visit them.

       Similarly, the record does not contain clear and convincing evidence that the twins will be
substantially harmed if they are separated from their older siblings. While the record contains
evidence that Ms. Ray’s four children have bonded and that they get along well with each other, it
contains no evidence regarding the reasonably anticipated effects that separating the children might
have. To influence custody decisions in cases like this one, the presumption against separating




                                                 -12-
siblings 11 will not suffice. Before custody can be denied a biological parent on the ground that
children will be separated from their half-siblings, there must be clear and convincing evidence that
the separation will cause the children severe psychological harm.

         Mr. Staggs has not said that he will not permit the twins to continue their relationship with
their older half-sisters. Thus, the concerns about the effects of separating the twins from their
siblings can be addressed by fashioning transitional orders and visitation orders designed to
minimize the impact of moving the children from one environment to another and to enable the
children to continue their relationship with their siblings. Rice v. Rice, 983 S.W.2d at 685
(permitting the use of visitation orders to promote the continuation of the relationship between half-
siblings). Neither the constitution nor common sense requires that the transition be abrupt.
Accordingly, when justified by the facts, courts may fashion a procedure for returning children to
a biological parent that minimizes the harm that the transition itself might cause to the child. These
transitional arrangements may include provisions enabling the children to maintain their relationship
with their siblings.12

                                                          III.

         We vacate the portions of the January 12, 2000 and April 3, 2000 orders denying Mr.
Staggs’s petition for custody of his biological children and remand the case to the trial court with
directions to conduct a hearing consistent with this opinion to determine whether Mr. Staggs is
currently fit to have custody of his children and whether granting Mr. Staggs custody will expose his
children to substantial harm. Pending this hearing, the trial court shall prescribe appropriate
visitation for Mr. Staggs and his children. The costs of this appeal are taxed in equal proportions to
Stephen Eric Staggs and his surety and William Martin Ray for which execution, if necessary, may
issue.



                                                                 _____________________________
                                                                 WILLIAM C. KOCH, JR., JUDGE




         11
            Bagg ett v. Bagg ett, 512 S.W.2d 292 , 293-94 (Tenn. Ct. App. 1 973). This presumption is not inflexible and
must give way to oth er conside rations in app ropriate circ umstances. Rice v. Rice, 983 S.W .2d at 684. The fact that
children are half-siblings may p rovide a b asis for disrega rding the pre sumption.

         12
            Maintaining a child’s relationship with his or her siblings may, of necessity, include the involvement of the
custodians of all the children. For example, a court could decide th at maintaining the relationship among siblings
requires pe rmitting a child to visit in his or her sibling ’s home und er the superv ision of that sibling’s p arent.

                                                         -13-
