                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             April 1, 2003 Session


   WILLIAM JOSEPH WILLIAMS v. MARLA JANE BARNES-MASON

                 Direct Appeal from the Juvenile Court for Hamblen County
                        No. 12931   Hon. Mindy Norton Seals, Judge

                                      FILED APRIL 30, 2003

                                No. E2002-01442-COA-R3-CV



Primary residential custody was awarded to mother. Father appealed. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.


HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, J., joined.

Douglas R. Beier, Morristown, Tennessee, for Appellant.

J. Eric Harrison, Morristown, Tennessee, for Appellee.




                                            OPINION


              The sole issue on appeal in this custody dispute is whether the Trial Court erred in
awarding defendant primary residential custody of the parties’ minor child.

                The parties began cohabiting in 1999, and their son Isaiah was born on April 13,
2000. At the time the mother was 21 years old and the father was 28 years old. The parties never
married, although they cohabited. The mother became employed in August of 2001, working full
time as a receptionist. On December 3, 2001, the father came home from church to find the mother
in the process of packing hers and the baby’s things and moving out, whereupon the father called his
parents to come and take care of the child. A confrontation occurred and the police were called, but
the grandparents returned the child promptly.
               The grandmother kept the child for half a day on Monday after the dispute on Sunday,
and on Tuesday, New Year’s Eve, she babysat so the mother could go out with friends. On January
2, 2002, mother took the child to grandmother as usual, and the father retained an attorney on the
same day. Upon advice of counsel, he advised the mother when she returned from work to pick up
the child that he intended on keeping Isaiah “until further arrangements are made through the
Courts.” He then filed the Petition in this case to Establish Primary Residential Placement.

                 The paternal grandparents are principal figures in Isaiah’s life, having kept him almost
daily since he was born, including when the mother was not working or in school. They devote a
great deal of time to providing Isaiah with various educational and enriching activities. The mother
acknowledged that the grandmother is a great care giver, and that the child is doing well and happy
in her care. The mother recognizes the positive influence of the strong close-knit family, and
intended to keep this child care arrangement if she was awarded custody.

                Numerous witnesses testified in this case, and the Trial Court awarded primary
residential custody to the mother, with the father having weekly visitation from Sunday at 8:00 a.m.
to Tuesday at 8:00 a.m. The Trial Court’s findings and Order specifically addresses each statutory
factor of Tenn. Code Ann. § 36-6-106(a), essentially finding all (except for differences in income
levels) to be equipoise. The Trial Court found the father had withheld the child from the mother by
requiring her to visit in his home and refusing to permit overnight visitations; and testimony that the
father was controlling and manipulative was credited by the Court. The Court noted that the father
failed to prove that Isaiah would be unsafe with his mother, whereas the mother demonstrated a
willingness to work with the father by bringing the child to his usual babysitter, the grandparents.

               Child custody cases are reviewed on appeal de novo with a presumption of correctness
of the Trial Court’s findings, unless the evidence preponderates otherwise. Tenn. R. Civ. P. 13(d);
Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984).

                Tenn. Code Ann. § 36-2-303 provides that the custody of a child born out of wedlock
shall be with the mother unless there is an Order otherwise. This Court has held that if a custody
dispute arises between parents over a child born out of wedlock the comparative fitness test is the
proper standard to be applied, where there has been no previous custody decree. Durant v. Howard,
2001 WL 1103500 at *2 (Tenn. Ct. App. Sept. 20, 2001).

                 Great deference must be afforded lower courts when factual findings hinge in large
part upon the credibility of witnesses because the lower court has a better opportunity to observe the
manner and demeanor of the witnesses as they testify. Randolph v. Randolph, 937 S.W.2d 815, 819
(Tenn. 1996). The Trial Court based it’s ruling primarily upon its conclusion that the father withheld
the child from the mother and was untruthful regarding the use of an illegal substance. The evidence
does not preponderate against the Trial Court’s finding that both parents were fit parents to have
custody of the child, and the evidence does not preponderate against the Trial Court’s determination
that it was in the best interest of the child that the mother have residential custody.

                We find no basis to disturb the Trial Court’s award of custody and remand, with the


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cost of the appeal assessed to the appellant, William Joseph Williams.




                                                     _________________________
                                                     HERSCHEL PICKENS FRANKS , J.




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