                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                      May 1, 2001 Session

   ROBERT KEITH RICHARDSON v. DEBORAH ETTA RICHARDSON

                  A Direct Appeal from the Circuit Court for Shelby County
                           No. 150511-7   Robert A. Lanier, Judge



                     No. W2000-02374-COA-R3-CV - Filed June 14, 2001



DAVID R. FARMER , J., concurring.


       I concur in the result reached by the majority opinion. However, I write separately to express
my concern with the language in the opinion to the effect that a change of circumstances substantial
to warrant a change of custody requires a change to prevent substantial harm to the child. I
acknowledge that this language appears in Wall v. Wall, 907 S.W.2d 829, 834 (Tenn. Ct. App.
1995), an opinion of the middles section of this court. However, I further note that Wall cited
Contreras v. Ward, 831 S.W.2d 288 (Tenn. Ct. App. 1991). Contreras was a parental relocation
case which stated the long recognized rule that “the best interest and welfare of the child must be the
primary focus of attention.” Contreras, 831 S.W.2d at 290.

        In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), the eastern section of
this court noted that the paramount consideration in custody proceedings is the best interest of the
child and that, when the issue is whether to modify a prior custody order, the court need not repeat
the comparative fitness analysis set forth in Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983).
Instead, the trial court in a modification proceeding must find a material change in circumstances
compelling enough to warrant the dramatic remedy of changed custody. The court went on to say
that “[i]t is only that behavior of a parent which clearly posits or causes danger to the mental or
emotional well-being of a child (whether such behavior is immoral or not), which is sufficient basis
to seriously consider the drastic legal action of changing custody.” Musselman, 826 S.W.2d at 924
(quoting Ballard v. Ballard, 434 So. 2d 1357, 1360 (Miss. 1983)).

        Our supreme court recently addressed the standard to be applied in modifying a child custody
decree in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996). Aaby, which also dealt with parental
relocation, cited Musselman for the proposition that “Tennessee law allows custody to be changed
if the behavior of the custodial parent clearly posits a danger to the physical, mental or emotional
well-being of the child.” Aaby, 924 S.W.2d at 629-30 (emphasis added).
         The eastern section of this court subsequently has interpreted Musselman and Aaby to mean
that “[t]he Musselman/Aaby test requires more -- we must find ‘behavior . . . [that] clearly posits
a danger’ to the children.” Rector v. Rector, No. 03A01-9604-CV-00123, 1996 WL 539767, at *4
(Tenn. Ct. App. Sept. 25, 1996) (emphasis added). I do not interpret Aaby, however, to hold that,
“in order to be compelling enough to warrant the dramatic remedy of changed custody, the change
of circumstances must be such that continuation of the adjudicated custody will substantially harm
the child.”

        Citing Wall, the western section of this court has held that a custody decision is not
changeable except for change of circumstances, which is defined as that which requires a change to
prevent substantial harm to the child. Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL
272458, at *6 (Tenn. Ct. App. May 23, 1997); Greene v. Greene, No. 03A01-9503-CV-00091, 1996
WL 165098, at *4 (Tenn. Ct. App. Apr. 9, 1996). This section also has cited Musselman for the
proposition that “[i]t is only that behavior of a parent which clearly posits or causes danger to the
mental or emotional well-being of a child (whether such behavior is immoral or not), which is
sufficient basis to seriously consider the drastic legal action of changing custody.” Williams, 1997
WL 272458, at *6 (emphasis added). I acknowledge that I have concurred in previous decisions
containing the foregoing language, but upon further reflection, I believe the better standard is as set
forth in Stroud v. Stroud, No. 01A01-9607-CH-00291, 1997 WL 266846, at *1 (Tenn. Ct. App.
May 21, 1997), wherein this court said “[c]ustody may be changed if the behavior of the custodial
parent clearly posits a danger to the physical, mental, or emotional well-being of the child.” Stroud,
1997 WL 266846, at *7 (emphasis added) (citing Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.
1996)).

        Section 36-6-101(a)(1) of the Tennessee Code Annotated empowers the courts to change
custody “as the exigencies of the case may require.” The middle section of this court stated recently
that: “The courts will change a custody or visitation arrangement if the party seeking the change
proves (1) that the child’s circumstances have changed materially in a way that could not reasonably
have been foreseen at the time of the original custody decision, see Smith v. Haase, 521 S.W.2d 49,
50 (Tenn. 1975); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. Ct. App. 1987)[modified,
1987 WL 15543, at *1 (Tenn. Ct. App. Aug. 7, 1987)], and (2) that the child’s interests will be better
served by changing the existing custody or visitation arrangement. See 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).” Solima v. Solima, No. 01A01-9701-CH-00012, 1998 WL 726629, at **2-3
(Tenn. Ct. App. Oct. 16, 1998).

       As Professor Garrett states:

                Before custody is changed, the trial court will engage in a two step procedure.
       First, the trial judge must find an unanticipated significant change of circumstances
       sufficient to change custody. Second, the trial court will engage in a comparative
       fitness examination to determine which custodial setting will be most beneficial for
       the child.


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W. Walton Garrett, Tennessee Divorce, Alimony & Child Custody § 26-4 (2000 ed.) (footnotes
omitted). I recognize that Professor Garrett further states, “[m]ost of the appellate opinions require
a finding of changed circumstances which indicate a substantial risk of harm to the child’s emotional
or physical well being.” Id. He further lists some 37 criteria upon which our courts have based
modification of child custody decrees. Id. § 26-5.

        I am concerned that we have created too harsh a standard by holding that a change of custody
will be granted only upon a showing that a continuation of the adjudicated custody will substantially
harm the child. Harm is defined as “physical or mental damage.” Webster’s Ninth New Collegiate
Dictionary 554 (1990). I can envision circumstances in which there is determined to be a material
change of circumstances which would indicate that a change of custody is in the child’s best interest,
but would fall short of a continuation of the adjudicated custody resulting in “substantial harm” to
the child.



                                               ____________________________________
                                               DAVID R. FARMER, JUDGE




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