                        IN THE COURT OF APPEALS OF TENNESSEE
                                   AT KNOXVILLE
                                                October 3, 2000 Session

                           ARTHUR BLAIR v. MARILYN BADENHOPE

                              Appeal from the Chancery Court for Greene County
                               No. 93-101 Thomas R. Frierson, II, Chancellor

                                              FILED NOVEMBER 9, 2000

                                             No. E1999-02748-COA-R3-CV




CHARLES D. SUSANO, JR., J., dissenting.




         I cannot concur in the majority=s decision to affirm the trial court=s judgment. I believe the evidence
preponderates against the trial court=s critical factual determinations underpinning its decision to deny
Father=s petition seeking the custody of his natural child. Utilizing the standard relied upon by the majority, I
find that the evidence preponderates in favor of a finding of Achanged circumstances showing that an award
of custody to [Father] would no longer result in substantial harm to the child.@ See In re Askew, C/A No.
02A01-9708-CV-00201, 1998 WL 652557, at *4 (Tenn. Ct. App. W.S., filed September 24, 1998). I
hasten to add, however, that I have serious doubts as to the applicability of the standard used by the
majority. The case of Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) suggests that the real issue
upon which this case should be decided is simply whether the placing of the child with her father would put
Athe child...in danger of substantial harm.@ Id. at 685. I believe, if faced with the facts of this case, the
Supreme Court would adopt the approach taken in Simmons and hold that Achange of circumstances@ is
not the standard to be applied in the instant case, involving as it does a fundamental constitutional right of
Father.1




          1
            In Simmons, parents were attempting to upset a prior order awarding grandparents= visitation. Id. at 682. I believe it goes
without saying that an award of grandparents= visitation is an example of a much lesser intrusion on a parent=s right to care for his or
her child than is an award of custody. If it is not necessary to show a change of circumstances in the former situation, I believe it
follows that it is not necessary to make such a showing in order to overturn the more intrusive state action present in a grant of
custody to a non-parent.
         I agree with the majority that the maternal grandmother has, in the words of the majority, Adone an
excellent job of caring for the [c]hild@; but, in my opinion, this fact is not enough to justify the continuation of
the separation of this father and his child. There is no proof that Father=s character, conduct, or
surroundings are such as to suggest that their reunion would result in a risk of Asubstantial harm@ to the child.
 Id. Furthermore, I find nothing in the nebulous2 dealings between Father=s wife and Mr. Drummy that
occurred in the 1995-1996 time frame to support a finding of a present occasion of substantial harm to this
child if Father is awarded her custody.

         While recognizing that there have been Apositive changes@ in Father=s life, the majority dismisses
their significance by saying that Athey are not unanticipated changes.@ I disagree. I believe Father has
demonstrated material changes in his situation, changes that were not anticipated at the time of the earlier
court hearing in this matter. To continue to countenance the separation of this parent and his child is to do
substantial violence to Father=s fundamental constitutional right to rear and care for his child without
interference from the state. See Tenn. Const. art. I, ' 8; Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993);
Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995).

       I would reverse the trial court=s judgment and award custody of this young woman to her father.
Accordingly, I dissent.




                                                                         ___________________________________
                                                                         CHARLES D. SUSANO, JR., JUDGE




          2
            The majority tacitly acknowledges the hazy nature of the evidence pertaining to this relationship by referring to it as Asome
sort of relationship.@


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