BRIDGET C. RASMUSSEN,                  )
                                       ) Montgomery Chancery
       Plaintiff/Appellant,            ) No. 95-07-0128
                                       )
VS.                                    )
                                       ) Appeal No.
LEIF C. RASMUSSEN,                     ) 01-A-01-9705-CH-00211

       Defendants/Appellees.
                                       )
                                       )                     FILED
                                                             December 12, 1997
                    IN THE COURT OF APPEALS OF TENNESSEE
                                                       Cecil W. Crowson
                         MIDDLE SECTION AT NASHVILLE
                                                      Appellate Court Clerk
      APPEALED FROM THE CHANCERY COURT OF MONTGOMERY COUNTY
                      AT CLARKSVILLE, TENNESSEE

                  HONORABLE ALEX W. DARNELL, CHANCELLOR


Kevin C. Kennedy, #010793
127 South Third Street
Clarksville, TN 37040
ATTORNEY FOR PLAINTIFF/APPELLANT

Gary J. Hodges, #1605
115 South Third Street
P.O. Box 645
Clarksville, TN 37041-0645
ATTORNEY FOR DEFENDANT/APPELLEE


                              AFFIRMED AND REMANDED
                                 WITH INSTRUCTIONS



                                      HENRY F. TODD
                                      PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE

DISSENT IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
BRIDGET C. RASMUSSEN,                            )
                                                 ) Montgomery Chancery
          Plaintiff/Appellant,                   ) No. 95-07-0128
                                                 )
VS.                                              )
                                                 ) Appeal No.
LEIF C. RASMUSSEN,                               ) 01-A-01-9705-CH-00211
                                                 )
          Defendants/Appellees.                  )


                                        O P I N I O N


          On November 26, 1996, the plaintiff, Bridget C. Rasmussen filed a notice of appeal from the

judgment of this Court entered in this action on the 4th and 7th day of November, 1996. The order

entered on November 4, 1996, was entitled “Final Decree of Divorce.” The order entered on

November 7, 1996, stated that it was entered upon the motion by the complainant and the petitions

of the defendant regarding visitation of the complainant, Bridget C. Rasmussen. The resulting

record was filed in this Court on February 3, 1997, under No. 01A01-9701-CH-00045.



          On March 17, 1997, the plaintiff, Bridget C. Rasmussen filed a notice of appeal from the

judgments of this Court entered in court orders of the Final Decree of November 4, 1996, the Court

Order of November 7, 1996, and the Court Order of March 3, 1997. The March 3, 1997, order

states:

                         This matter came to be heard before the Honorable
                 Alex W. Darnell, Chancellor for the Chancery Court of
                 Montgomery County, Tennessee, and it appearing to the
                 Court that there should be no award of alimony and that the
                 parties have divided the property of the marriage.

                        IT IS THEREFORE ORDERED, ADJUDGED AND
                 DECREED by the Court that there is no award of alimony in
                 this matter.

                        2.     IT IS FURTHER ORDERED, ADJUDGED
                 AND DECREED by the Court that the property of the
                 marriage has been divided by the parties.


          The resulting record was filed with the Clerk of this Court on May 16, 1997, under No.

01A01-9705-CH-00211.

                                                 -2-
       On May 19, 1997, counsel for appellant wrote the Clerk of this Court requesting that the two

appeals be consolidated, but no motion was made to this Court and no consolidation order has been

entered by this Court. Nevertheless, the parties have filed their briefs and otherwise treated the two

appeals as consolidated. For judicial economy, this opinion will discuss and dispose of both appeals.



       Except as indicated, the following facts are undisputed:



       The parties were married September 4, 1993, at which time the husband was a member of

the armed forces stationed at Ft. Campbell, Kentucky near Clarksville, The wife attended Austin

Peay State University and was employed in a diagnostic center. Their only child, a son, was born

September 7, 1994. The parties separated about July 1995. The wife moved to Virginia to live with

her parents. At the time of the trial, the husband’s station had been moved to Arizona for an

expected term of four years.



       On October 25, 1996, the Trial Judge filed his opinion containing the following:

                        Jessie Summer, Kimberly Lascottie, Cliff and
               Elizabeth Mullens, Aaron Peeks, Patrick and Alex Galvin,
               Jessie Summer, Jr., and Kelly Carlton gave testimony that was
               generally unfavorable to Ms. Rasmussen. The collective
               testimony of these persons would substantiate an unnatural
               relationship of Ms. Rasmussen with another woman. It would
               also show that Bridget became upset when she had to deal
               with the child and did not do a very good job. They would all
               generally agree that the Rasmussens’’ cursed at each other, to
               an extent that it was very obvious. The Court does not choose
               to recite all the testimony of these parties on which notes were
               taken but only that they detail some inappropriate statements
               of Ms. Rasmussen and that she had not given quality
               treatment to her child.

                       The cumulative evidence in this cause places Bridget
               Rasmussen in a more unfavorable position than Leif
               Rasmussen. The Court believes that, although Bridget
               provided the most care for the child, it was provided in some
               measure, under protest. Ms. Rasmussen has not been willing
               to sever her emotional ties to Joanne Darshay even when the
               care of the child was affected.

                       The Court is of the opinion that the best interest of the

                                            -3-
               child would be served by creating a joint custody
               arrangement. Leif C. Rasmussen would be designated as the
               primary custodian of the child. As such he would have the
               authority to choose the child care givers and medical
               personnel who might treat the child. The hours in which each
               party would have the child in their personal care would be the
               same as in the Order in this cause filed for record on October
               20, 1995. The Court believes this would be appropriate
               inasmuch as the parties have followed this directive for over
               a year and both live in near proximity of the other. In the
               event that either party were to remove himself or herself from
               the immediate area of Clarksville, Tennessee, they should
               make a written proposal to the other party and try to reach
               some agreement for future visitation in the event of such a
               move. If no agreement is forthcoming the burden shall be on
               the person seeking to move to file a petition for a declaration
               by the Court.

                      Due to the near equal care to the child by the parties
               Mr. Rasmussen shall pay the child care provider and Bridget
               Rasmussen shall pay to Mr. Rasmussen for support the sum
               of $175.00 per month.


       The order entered on November 4, 1996, provided for extensive and detailed visitation and

shared expense of travel.



       The order of November 7, 1996, contained further details of transfer of physical custody of

the child from time to time.



       Upon arrival of the record in the first appeal, the appeal was dismissed by this Court for lack

of a final judgment and the cause was remanded for adjudication of the issues of property division

and alimony.



       On February 14, 1997, the plaintiff-wife filed in the trial court the following motion:

                       Come now the Complainant, Bridget C. Rasmussen,
               by and through her attorney of record, Kevin C. Kennedy,
               pursuant to a request from the Court of Appeals, and
               respectfully moves this Honorable Court for a ruling on the
               issues of alimony and distribution of property.




                                               -4-
           On March 17, 1997, the plaintiff-wife filed the second notice of appeal mentioned above.



           The appellant-wife presents the following issues for review:

                                                 I.
                           Whether joint custody is in the best interest of the
                   parties’ minor child?
                                                II.
                           Whether the evidence in the record preponderates in
                   favor of an award of custody of the parties’ minor child to the
                   appellant?


           The appellee-husband states the issue as follows:

                           I.      Whether the Trial Court abused its discretion
                   by virtue of awarding the parties’ joint custody of their minor
                   child, and awarding the Appellee primary care, custody and
                   control of said child?


           It is seen that the only issue for resolution in this appeal is custody of the minor child of the

parties.



           Appellant-wife insists that the award of joint custody is unreasonable, but concedes that the

Trial Courts have broad discretion in matters of child custody which discretion should not be

disturbed on appeal in the absence of clear error in exercise of the discretion. Gray v. Gray, Tenn.

App. 1994, 885 S.W.2d 353; Riddick v. Riddick, Tenn. App. 1973, 497 S.W.2d 740. The welfare

and best interest of the child is the prime consideration. Lentz v. Lentz, Tenn. 1986, 717 S.W.2d 876.



           Appellee-husband argues that the proven behavior of the wife with an admitted lesbian is

sufficient to disqualify her for primary custody of the child. The wife denies that she is a lesbian,

but admits to a friendship with an admitted lesbian and that she (the wife) spent several nights with

the admitted lesbian during the marriage, insists that association with an admitted lesbian does not

disqualify her to act as principal custodian of a natural child.



           In the present case, the detrimental effect of lesbianism upon a 2 or 3 year old child is not

                                                    -5-
shown with sufficient clarity to justify a reversal of the continued shared custody.



       The wife relies upon the “tender years” doctrine which is no longer recognized as dominant

or decisive in child custody cases. At the time of the entry of the orders under review, TCA § 36-6-

101(d) provided:

                       It is the legislative intent that the gender of the party
               seeking custody shall not give rise to a presumption of
               parental fitness or cause a presumption in favor or against the
               award of custody to such party; provided, that in the case of
               a child of tender years, the gender of the parent may be
               considered by the court as a factor in determining custody
               after an examination of the fitness of each party seeking
               custody.


       The legislative mandate to determine the relative fitness of each contending parent preserves

the broad discretion of divorce courts to preserve and protect the best interest of minor children in

awarding custody or visitation.



       TCA § 36-6-106 (1995) provides the following factors to be considered in determining

fitness for custody:

                     (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 care giver;

                       (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. The court may hear the
               preference of a younger child upon request. The preferences

                                    -6-
               of older children should normally be given greater weight
               than those of younger children;

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

                      (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.


       Neither party to the present proceeding represents an ideal candidate for child custody.

However, neither is shown to be disqualified. The best interests of the child do not appear to have

been fully developed. The distance between the residences of the parties is a formidable difficulty

in the transfer of physical custody. The effect of these difficulties upon the well-being of the child

is not sufficiently explored in the present record to enable this Court to make a satisfactory

determination of the issue, which should be the subject of a further hearing and determination by the

Trial Court. With this exception the judgment of the Trial Court is affirmed. Costs of this appeal

are assessed equally against the parties, that is, each party shall pay one-half of same. The cause is

remanded to the Trial Court for further proceedings in conformity with this opinion, including a

further hearing and determination of that plan of custody and visitation which is for the best interest

of the minor child.



                                 AFFIRMED AND REMANDED
                                   WITH INSTRUCTIONS


                                       ___________________________________
                                       HENRY F. TODD
                                       PRESIDING JUDGE, MIDDLE SECTION


CONCUR:


_____________________________
BEN H. CANTRELL, JUDGE



DISSENT IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE

                                                 -7-
-8-
