                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON

            JEREMY EARL TOMPKINS v. MARY HELEN RAINEY

                  Direct Appeal from the Juvenile Court for Shelby County
                         No. K6372    A.V. McDowell, Special Judge



                   No. W1999-01218-COA-R3-CV - Decided July 11, 2000


In this action to establish parentage, Jeremy Earl Tompkins (Father) appeals the trial court’s final
judgment awarding Mary Helen Rainey (Mother) custody of the parties’ infant son. We affirm the
trial court’s judgment.

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

FARMER , J., delivered the opinion of the court, in which CRAWFORD , P.J.,W.S., and HIGHERS , J.,
joined.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the appellant, Jeremy Earl Tompkins.

Wm. Craig Hall, Collierville, Tennessee, and Richard F. Vaughn, Memphis, Tennessee, for the
appellee, Mary Helen Rainey.



                                            OPINION


        The parties began dating in January 1998, and they began living together in March 1998. In
May 1998, the parties discovered that the Mother was pregnant. Shortly thereafter, the Mother’s
parents informed the parties that they could provide insurance coverage and a place to live if the
parties moved to Charlottesville, Virginia. Consequently, in June 1998, the parties moved from
Memphis to Charlottesville and began living with the Mother’s parents.

        By December 1998, the Father was unhappy living in Charlottesville because he missed his
family and friends in Memphis. The Father also complained that the Mother’s parents’ home was
dirty and cluttered and that the Mother and her mother often bickered. With the Mother’s agreement,
the Father returned to Memphis and began working for his father as a carpenter’s apprentice. The
Father returned to Charlottesville for Christmas and again in January 1999 when the child was born.
Because of the insurance coverage provided by the Mother’s parents, the parties did not have to pay
any expenses related to the child’s birth.

        In early February 1999, within weeks of the child’s birth, the Father and the Mother returned
to Memphis to live. Almost immediately, however, the parties began experiencing discord in their
relationship. Upon returning to Memphis, the Mother learned that the Father had not yet obtained
an apartment for the parties. The Mother refused to live with the Father at his parents’ home, so she
and the child stayed with a friend in Southaven, Mississippi, and, later, with a sister in Jackson,
Mississippi. By the end of February 1999, the Father had obtained an apartment for the parties in
the Memphis area. Less than two months after moving into the apartment, however, the parties
separated.

        On April 28, 1999, the Father initiated the present proceedings when he filed a petition to
establish parentage of the child. See Tenn. Code Ann. §§ 36-2-301 to -322 (Supp. 1998). In
addition to asking the trial court to establish the child’s parentage, the Father requested the trial court
to temporarily enjoin the Mother from removing the child from Shelby County and to award the
Father specific and liberal visitation with the child. The Father later amended his petition to seek
custody of the child.

         At trial, the Father acknowledged that the Mother had served as the child’s primary caretaker
since the child’s birth. The Father testified, however, that he attempted to take care of the child by
changing the child’s diapers and by feeding and burping the child. According to the Father, the
Mother limited his role in caring for the child because she was “overly protective” of the child and
critical of the Father’s parenting methods. The Father also testified that, when the parties had
conflicts both before and after their separation, the Mother threatened to prevent the Father from
seeing the child.

       The Mother admitted that she had threatened to prevent the Father from visiting the child.
She explained, however, that she made some of these statements “out of anger” when the parties
were arguing. The Mother also complained that, when the Father exercised visitation, he did not
keep her informed of the child’s whereabouts and, on at least one occasion, refused to answer her
phone calls.

        The Mother expressed a desire to move with the child back to Charlottesville. The Mother’s
parents had offered to help her get an apartment that was approximately fifteen minutes from their
home. The Mother planned to go back to work for Federal Express and to return to school. The
Mother testified that her mother would help care for the child while the Mother was working and
attending classes. The Mother proposed meeting the Father halfway between Charlottesville and
Memphis to enable the Father to exercise visitation with the child. The Mother also testified that
the Father could stay with one of her relatives if he chose to exercise visitation in Charlottesville.

        At the trial’s conclusion, the trial court entered an order declaring the Father to be the child’s
father, awarding custody of the child to the Mother, awarding the Father specified visitation, and


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ordering the Father to pay child support in the amount of $364.35 per month. The trial court further
ordered the Mother to meet the Father in Knoxville in the event the Father could not travel to
Charlottesville to exercise visitation with the child. On appeal from this order, the Father challenges
only the trial court’s decision to award custody of the parties’ child to the Mother.

         Our review of the trial court’s custody decision is governed by rule 13(d) of the Tennessee
Rules of Appellate Procedure. See Ruyle v. Ruyle, 928 S.W.2d 439, 441 (Tenn. Ct. App. 1996);
Koch v. Koch, 874 S.W.2d 571, 575 (Tenn. Ct. App. 1993). Rule 13(d) requires this court, in
conducting a de novo review of the record, to presume that the trial court’s factual findings are
correct, unless the evidence in the record preponderates otherwise. See Tenn. R. App. P. 13(d). In
applying this standard of review, we are mindful that “[t]rial courts are vested with wide discretion
in matters of child custody” and that “the appellate courts will not interfere except upon a showing
of erroneous exercise of that discretion.” Koch, 874 S.W.2d at 575. Because “[c]ustody and
visitation determinations often hinge on subtle factors, including the parents’ demeanor and
credibility” during the proceedings, appellate courts “are reluctant to second-guess a trial court’s
decisions.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The courts’ paramount
concern in a custody case is the welfare and best interest of the parties’ minor child. See Ruyle, 928
S.W.2d at 441; Koch, 874 S.W.2d at 575. This determination necessarily turns on the particular
facts of each case. See Koch, 874 S.W.2d at 575.

        In making its custody decision, the trial court is required to engage in a “comparative fitness”
analysis. Gaskill, 936 S.W.2d at 630. That is, the court is required to determine which parent is a
comparatively more fit custodian than the other. See id. This factually-driven inquiry requires the
court to carefully weigh, inter alia, the following considerations:

               (1)      The love, affection and emotional ties existing between the parents
        and child;

               (2)     The disposition of the parents to provide the child with food, clothing,
        medical care, education and other necessary care and the degree to which a parent has
        been the primary caregiver;

                (3)     The importance of continuity in the child’s life and the length of time
        the child has lived in a stable, satisfactory environment; . . .

                (4)     The stability of the family unit of the parents;

                (5)     The mental and physical health of the parents;

                (6)     The home, school and community record of the child;

                 (7)    The reasonable preference of the child if twelve (12) years of age or
        older. . . .


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              (8)     Evidence of physical or emotional abuse to the child, to the other
       parent or to any other person; . . . .

              (9)     The character and behavior of any other person who resides in or
       frequents the home of a parent and such person’s interactions with the child; and

                (10) Each parent’s past and potential for future performance of parenting
       responsibilities, including the willingness and ability of each of the parents to
       facilitate and encourage a close and continuing parent-child relationship between the
       child and the other parent, consistent with the best interest of the child.

Tenn. Code Ann. § 36-6-106 (Supp. 1998).

        On appeal, the Father contends that the trial court erred in awarding custody of the child to
the Mother because the foregoing factors, with the exception of subsection (3) regarding the
“importance of continuity,” favored awarding custody to the Father as the more comparatively fit
custodian. In support of this contention, the Father cites evidence that, at the time of trial, he was
in perfect health, was gainfully employed, had provided financial support to the Mother and child
pending these proceedings, and had a close relationship with his parents. The Father contends that,
in contrast, the evidence showed that the Mother was unemployed, had a tense and sometimes
violent relationship with her own mother, and had interfered with the Father’s visitation with the
child in the weeks following the parties’ separation.

        Despite the favorable evidence supporting the Father’s custody request, we conclude that the
trial court did not err in awarding custody of the parties’ child to the Mother. The Mother countered
many of the Father’s allegations by testifying that she and her mother did not have a violent
relationship and that, upon her move to Virginia, the Mother planned to find employment and return
to school.1 Although the Mother acknowledged that she had threatened to prevent the Father from
seeing the child, the Mother explained that she made some of these statements out of anger shortly
after the parties’ separation. At trial, the Mother stated that she wanted the Father to see the child
in the future and that she wanted the child “to grow up knowing his father.” The Mother also
attested to her willingness to cooperate with and abide by the court’s future orders regarding custody
and visitation.

        The trial court’s comments made at the trial’s conclusion suggested that, to the extent the
Father’s testimony conflicted with that of the Mother, the trial court accepted the Mother’s version
of events. Inasmuch as the trial court alone had the opportunity to observe the witnesses, we are not
in a position to second-guess that court’s determination of credibility. See Gaskill v. Gaskill, 936
S.W.2d 626, 631 (Tenn. Ct. App. 1996); Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983).



       1
       The Mother also disputed the Father’s account of the living conditions in the home of the
Mother’s parents.

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        Moreover, the trial court’s comments made from the bench suggested that the court was
particularly concerned with the factor of the importance of continuity in the child’s life. This court
has repeatedly emphasized the importance of stability and continuity of placement in custody cases.
See Gaskill, 936 S.W.2d at 630; see also McCain v. Grim, No. 01A01-9711-CH-00634, 1999 WL
820216, at *2 n.1 (Tenn. Ct. App. Oct. 15, 1999) (no perm. app. filed); Burlew v. Burlew, No.
02A01-9807-CH-00186, 1999 WL 545749, at *7, *9 (Tenn. Ct. App. July 23, 1999), perm. app.
granted on other grounds (Tenn. July 3, 2000); Smith v. Smith, No. 01A01-9511-CH-00536, 1996
WL 526921, at *4 n.7 (Tenn. Ct. App. Sept. 18, 1996) (no perm. app. filed). Although continuity
does not trump all other factors, see Gaskill, 936 S.W.2d at 630, “it remains an important
consideration.” Grover v. Grover, No. 01A01-9804-CH-00197, 1999 WL 257653, at *5 (Tenn. Ct.
App. Apr. 30, 1999) (no perm. app. filed).

       In the present case, the evidence was undisputed that the Mother was the child’s primary
caretaker both prior to and after the parties’ separation. Although the trial court was not required
to award custody of the child to the Mother on this basis, see Grover, 1999 WL 257653, at *5, we
conclude that the court properly emphasized the Mother’s undisputed role as the child’s primary
caretaker in making its custody decision.

        In affirming the trial court’s custody order, we reject the Father’s argument that, in making
its custody determination, the trial court applied the wrong legal standard. The Father complains
that, during the trial, the trial court made certain comments that suggested that, rather than engaging
in a comparative fitness analysis, the court was placing the burden on the Father to prove that the
Mother was unfit to be the child’s custodian.

        We conclude that the trial court’s statements, when viewed in their entire context, do not
support the Father’s argument that the trial court used the wrong standard in awarding custody of the
child to the Mother. See Reno v. Reno, E1999-00590-COA-R3-CV, 2000 WL 276990, at *4-*6
(Tenn. Ct. App. Mar. 25, 2000) (no perm. app. filed). To the contrary, after reviewing the record,
we remain convinced that the trial court properly applied the “best interest” and “comparative
fitness” analyses required by law. During opening arguments, for example, the trial court asked the
Father’s counsel “why it would be in the best interest of the child to be with the father?” Moreover,
during the proceedings, the trial court repeatedly stressed to the parties that the Mother’s rights to
parent the child were no greater than the parental rights possessed by the Father.

       The trial court’s judgment is affirmed, and this cause is remanded for further proceedings
consistent with this opinion. Costs of this appeal are taxed to the appellant, Jeremy Earl Tompkins,
for which execution may issue if necessary.




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