                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                 September 6, 2001 Session

                   ARTHUR BLAIR v. MARILYN BADENHOPE

              Appeal by Permission from the Court of Appeals, Eastern Section
                           Chancery Court for Greene County
                     No. 93-101    Thomas R. Frierson II, Chancellor


                      No. E1999-02748-SC-R11-CV - Filed May 3, 2002




FRANK F. DROWOTA , III, C.J., concurring and dissenting.


        I fully agree with the majority’s conclusion that a natural parent cannot generally invoke
the doctrine of superior parental rights to modify a valid order of custody, even when that order
resulted from the natural parent’s voluntary relinquishment of custody to the non-parent. I also
agree with the majority’s conclusion that, in such circumstances, a natural parent seeking to
modify custody must show that a material change in circumstances has occurred, which makes a
change in custody in the child’s best interests. I disagree, however, with the majority’s
conclusion that Blair has failed to show a material change of circumstances in this case. The
factors in the record supporting this conclusion are succinctly summarized in Justice Birch’s
dissenting opinion as follows:
        When Blair originally agreed to surrender custody of Joy to Badenhope, his
        relationship with his daughter was uncertain and had only begun. Indeed, he
        apparently did not even see Joy until after her mother’s death. But in the many
        years that have passed since that time, Blair has expended great effort to create a
        strong, loving bond with his daughter. That bond has flourished to such a degree
        that Joy now has expressed an interest in living with Blair. Additionally, Blair has
        moved to Tennessee to be nearer to Joy,[footnote omitted] and he has purchased a
        new home in a neighborhood where Joy has many friends. Blair’s relationship
        with his daughter, his daughter’s interest in living with him, and even his place of
        residence have changed entirely.

        Having concluded that the record establishes a material change in circumstances, I would
remand this case to the trial court to determine whether or not transferring custody to Blair is in
the child’s bests interests. In my view, a remand is appropriate to give the trial court the
opportunity to make this fact intensive determination using the proper legal standard.
Remanding to allow the trial court to apply the correct legal standard also is consistent with this
Court’s prior practice in cases which have adopted or refined legal standards that govern fact-
specific inquiries. See, e.g., Memphis Housing Authority v. Thompson, 38 S.W.3d 504, 505
(Tenn. 2001); Harris v. Chern, 33 S.W.2d 741, 742 (Tenn. 2000); Logan v. Winstead, 23 S.W.3d
297, 303 (Tenn. 2000); State v. Anderson, 937 S.W.2d 851, 855(Tenn. 1996); State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Consequently, I would remand this case and
allow the trial court to determine whether or not custody should be transferred to Blair.




                                    ______________________________________
                                    Frank F. Drowota, III, Chief Justice




                                              -2-
