                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                             December 12, 2001 Session

                JOHN KEVIN POORE v. SONYA JOYCE POORE

                Direct Appeal from the Chancery Court for Hamblen County
                    No. 2000-247    Hon. Thomas R. Frierson, II., Judge

                                       FILED FEBRUARY 5, 2002

                                 No. E2001-01250-COA-R3-CV



In this custody dispute, the Trial Court awarded custody of the children to the father who was not
the biological parent of one of the children. We vacate the Judgment as to that child and remand
with instructions to apply the correct analysis of the evidence as to the custody of the child.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and
Vacated in Part.


HERSCHEL PICKENS FRANKS, J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY , J., joined.

Leslie Richard Hunt, Clinton, Tennessee, for Appellant.

Edward R. Sempkowski, Morristown, Tennessee, for Appellee.



                                             OPINION


              In this divorce action, the Trial Court granted custody of three minor children to the
husband, and wife has appealed and raised these issues:

               1.      Did the Trial Court violate wife’s constitutional rights when it granted
                       parental placement of the wife’s child to the husband who is not the child’s
                       natural father, without a finding of substantial harm to the child if placed with
                       the wife?

               2.      Did the trial court abuse its discretion when it designated the husband as the
                       primary residential parent of the parties two biological children?

                 After this action was filed, a hearing was held and temporary custody of the three
children was awarded to the husband. Subsequently, at trial, the parties stipulated that they had
participated in DNA testing which showed that husband was not the biological father of the middle
child. At the conclusion of proof, the Trial Court found that one of the children was conceived as a
result of an affair, but that neither parent had made any distinction in his or her love and support in
caring for this child. The Court further found there were strong bonds between the siblings, that
keeping the siblings together would promote the best interest of the children, and further that the best
interest of the children would be served by making the husband the primary residential parent. The
Court then ordered the wife to pay child support.

                 The Court, in making the custodial award, utilized the comparative fitness analysis,
and made no distinction between the husband’s biological children and the other child. The law of
our State is clear, however, that different legal standards are applicable to custody disputes between
two biological parents, and disputes between a biological parent and another. As this Court has
previously explained:

                The comparative fitness analysis commonly associated with custody disputes
                between biological parents cannot be used because it fails to take into account that
                the custody claims of biological parents and the custody claims of third parties do not
                have the same legal weight. A biological parent’s custody claims carry more weight
                than those of a third party because only biological parents have a constitutionally
                protected interest in raising their children.

                A biological parent’s interest in the care, custody, and control of his or her child is
                among the oldest of the judicially recognized fundamental liberty interests. It is
                protected not only by the Due Process Clause of the Fourteenth Amendment, but also
                by Tenn. Const. art. I, §8. Accordingly, biological parents have a constitutionally
                protected interest in raising their children free from unwarranted state intervention.

                                                 ***

                Persons who are not a child’s biological parent do not have the same constitutionally
                protected parenting interests possessed by a biological parent. Accordingly, when
                faced with competing custody claims by a biological parent and a third party, the
                courts must favor the biological parent. The courts cannot award custody to a third
                party instead of a biological parent unless the third party can demonstrate that the
                child will be exposed to substantial harm if custody is awarded to the biological
                parent. In other words, a biological parent cannot be denied custody unless he or she
                is found to be unfit.

Ray v. Ray, 2001 Tenn. App. LEXIS 746 (Tenn. Ct. App. Oct. 5, 2001)(citations omitted). See also


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In re Askew, 993 S.W.2d 1 (Tenn. 1999); Bond v. McKenzie, 896 S.W.2d 546 (Tenn. 1995); Petrosky
v. Keene, 898 S.W.2d 726 (Tenn. 1995); Henderson v. Mabry, 838 S.W.2d 537 (Tenn. Ct. App.
1992); Moore v. Moore, 1998 WL 758995 (Tenn. Ct. App. Oct. 30, 1998).

                In this case, the Trial Court was required to make a determination whether the child
would be exposed to substantial harm if custody was awarded to wife, the biological parent. The
Court pretermitted this issue, and engaged in a comparative fitness analysis, as noted. During the
trial, the husband’s attorney attempted to elicit testimony regarding alleged questionable conduct of
the wife, but the Court refused to allow this testimony, and gave the reason that he’d heard such
testimony at the temporary custody hearing.

               Since the Trial Court did not address the substantial harm question and applied the
incorrect standard regarding the custody of this child, we vacate the Trial Court’s Judgment as to the
custodial award of this child, and remand for the Trial Court to hear further evidence on this issue
and make a determination consistent with the standard set forth in this Opinion.

                The wife argues that the Trial Court should have awarded her residential custody of
the parties’ other two children. Our standard of review of the initial custody determination is “de
novo upon the record of the Trial Court, accompanied by a presumption of correctness of the
findings, unless the preponderance of the evidence is otherwise.” Hass v. Knighton, 676 S.W.2d 554
(Tenn. 1984). Moreover, because custodial decisions are factually based and often are determined
by the credibility of the witnesses, we are hesitant to reverse the trial courts’ decisions because the
trial judge was present and could observe the witnesses and judge their credibility. Adelsperger v.
Adelsperger, 970 S.W.2d 482 (Tenn. Ct. App. 1997). Considering the factors enumerated in Tenn.
Code Ann. §36-6-404(b) as the trial court expressly did in its custody determination, we find the
evidence supports the Trial Court’s grant of custody of the two children to the father.

                The Trial Court found that both parents had “loving, affectionate and emotional ties”
with the children, and that both could provide the children with food, clothing, education, and other
necessities. The Court found that husband worked the night shift, but enjoyed the benefit of his
parents caring for the children while he worked. The Court found that the oldest child did well in
school and maintained regular attendance, also that the husband had served as the primary care giver
during the parties’ separation, and further that a “healthy rapport” existed between the children and
husband’s parents. The evidence supports these findings. The proof showed that the children had
thrived while in husband’s care, and were well-cared for and seemingly had all of their needs met.
The evidence preponderates that the husband was the more stable of the two parents, and that his
home would be a suitable place for the children to have the security and continuity they needed.
There was no proof that husband did anything but encourage the children to have a relationship with
their mother and we find that the evidence preponderates in favor of the custodial award of the two
children to the father.

             The Judgment of the Trial Court is affirmed in part, vacated in part, and the cause
remanded with the cost of the appeal assessed one-half to John Kevin Poore and one-half to Sonya


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Joyce Poore.




                     _________________________
                     HERSCHEL PICKENS FRANKS, J.




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