       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE                          FILED
                                                            July 21, 1999

JOHN MICHAEL GORSKI,                  )                  Cecil Crowson, Jr.
                                      )                 Appellate Court Clerk
      Plaintiff/Appellant,            )   Sumner General Sessions, Division II
                                      )   No. 2402-G
VS.                                   )
                                      )   Appeal No.
LINDA EMILY GORSKI RAGAINS,           )   01A01-9710-GS-00597
                                      )
      Defendant/Appellee.             )




                      APPEAL FROM THE
       SUMNER COUNTY GENERAL SESSIONS COURT, DIVISION II

                             GALLATIN, TENNESSEE


               THE HONORABLE BARRY R. BROWN, JUDGE




For Plaintiff/Appellant:                  For Defendant/Appellee:

Joe P. Binkley, Jr.                       Michael W. Edwards
Nashville, Tennessee                      Hendersonville, Tennessee




                    VACATED AND REMANDED




                                          WILLIAM C. KOCH, JR., JUDGE
                                      OPINION

       This appeal stems from a protracted post-divorce custody dispute. Shortly after
the divorce, the father filed a change of custody petition in Division II of the Sumner
County General Sessions Court, and the court awarded him primary physical custody
on a temporary basis. Over two years later, the general sessions court dismissed the
father’s petition and ordered that the children be returned to their mother. We vacate
the order dismissing the father’s change of custody petition because the evidence
does not support the general sessions court’s conclusion that there had been no
material change in the children’s circumstances since the divorce.


                                                 I.


       John Michael Gorski and Linda Emily (Gorski) Ragains are the parents of two
children – Jonathon Edward Gorski, born in January 1988, and Haley Analissa
Gorski, born in June 1990. After their marriage foundered, Mr. Gorski and Ms.
Ragains entered into a marital dissolution agreement addressing all custody, support,
property, and other issues between them. Even though he was aware that Ms.
Ragains abused alcohol, Mr. Gorski agreed in the marital dissolution agreement that
Ms. Ragains would have sole custody of their children. Accordingly, when the
parties were divorced in 1994 in the Sumner County General Session Court, Division
II,1 Ms. Ragains received sole custody of the parties’ children, and Mr. Gorski
received visitation rights in accordance with the marital dissolution agreement.


       Ms. Ragains went into an emotional tailspin following the divorce.2 Many of
the parties’ mutual friends seemed to gravitate toward Mr. Gorski, and Ms. Ragains
lost her former social context. Her abuse of alcohol became more acute. Her




       1
         Division II of the Sumner County General Sessions Court has concurrent jurisdiction with
the circuit and chancery courts over “domestic matters.” See Act of Mar. 10, 1982, ch. 236, § 3,
1982 Tenn. Priv. Acts 89, 89-90, amended by Act of May 11, 1989, ch. 93, § 2, 1989 Tenn. Priv.
Acts 186, 186-87.
       2
          She explained later that “I was so hurt and devastated by this divorce. I thought I wanted
it, and I didn’t know how to live without [Mr. Gorski].”

                                                -2-
financial problems forced her to obtain a part-time job as a server in a restaurant.3
When she was eventually evicted from her apartment, she and the children moved
into her father’s and step-mother’s home.


       Ms. Ragains’ continued alcohol abuse contributed to several bizarre incidents
between late 1994 and early 1995. On one occasion, Ms. Ragains appeared at Mr.
Gorski’s apartment late at night and kicked in a window. On another occasion, Ms.
Ragains telephoned Mr. Gorski in the early morning hours and demanded in loud and
profane language that he come right over and pick up the children. On other
occasions, Ms. Ragains told Mr. Gorski that the children were no longer her priority.
Finally, on Super Bowl Sunday in 1995, Ms. Ragains left the children on the doorstep
of a house where Mr. Gorski was attending a Super Bowl party.4


       On February 6, 1995, less than four months after the divorce, Mr. Gorski filed
a change of custody petition. He alleged, among other things, (1) that Ms. Ragains
had lost her ability and desire to care for the children, (2) that Ms. Ragains had shown
an unstable employment history since the divorce, and (3) that Ms. Ragains often had
been drinking when she picked up the children from visitation. He also asserted that
a material change in circumstances had occurred and that he should be awarded both
temporary and permanent custody of the children. On February 17, 1995, before Ms.
Ragains had even answered Mr. Gorski’s petition, the general sessions court entered
an order temporarily changing the existing custody arrangement to joint custody,
placing the children under the protection of the Department of Human Services in
order to conduct home studies of the both parents' homes, and setting a March 1995
hearing on Mr. Gorski’s petition to change custody.




       Ms. Ragains responded to Mr. Gorski’s petition by denying that there had been
a material change in the parties’ circumstances after the divorce. On March 22, 1995,
the parties submitted an agreed order providing that they would have joint custody

       3
         Mr. Gorski would have us believe that it is significant that Ms. Ragains was employed as
a server at a Hooter’s restaurant. Other than illustrating Ms. Ragains’ need for a second job in order
to make ends meet, we attach little importance to the fact that Ms. Ragains chose to work at this
particular restaurant rather than somewhere else.
       4
         Concerning this unhappy period in her life, Ms. Ragains later candidly admitted that “I
couldn’t control my own life, much less my kids. I mean do you think they’re going to have respect
for their mother who is abusing alcohol like it was . . ..”

                                                 -3-
until the final disposition of Mr. Gorski’s petition. During this time, Ms. Ragains
also sought help for her alcohol abuse. She began attending both Alcoholics
Anonymous and professional counseling, and eventually, she was able to stop
drinking. She also obtained part-time work at both United Parcel Service and First
Tennessee Bank and attended a court-ordered parenting class. As a result of these
interventions, Ms. Ragains’ bizarre conduct stopped.


      In May 1995, the parties submitted another agreed order continuing the joint
custody arrangement but naming Mr. Gorski as the children’s "primary custodian."
At this point, the general sessions court evidently decided to supervise this custody
dispute on an on-going basis rather than to hear and act on Mr. Gorski’s change of
custody petition that had been filed three months earlier. Rather than setting Mr.
Gorski’s petition for a dispositive hearing, the general sessions court’s May 1995
order merely recited that “this matter shall be reviewed by the Court on Friday,
August 4, 1995.”


      Thereafter, for the next two years, the general sessions court held a hearing
before the children’s school year resumed to “review” the case. During the hearing
held in the summer of 1995, the court awarded custody of the children to Mr. Gorski
“on a temporary basis” to be “reviewed” next summer. At the 1996 hearing, which
was not held until October 1996, the court ordered the continuation of the temporary
custody arrangement but also increased Ms. Ragains’ visitation and ordered her to
begin paying child support to Mr. Gorski. The court also directed that “[t]his matter
shall be set for a final hearing upon motion of either party . . . during the month[s] of
June, July or August, 1997.”


      In May 1997, Ms. Ragains filed a motion requesting a final hearing and asking
that the children be returned to her. The general sessions court held a hearing on July
18, 1997 and heard a number of witnesses, including the parties themselves, Mr.
Gorski’s live-in girlfriend, and Frank Ragains, Ms. Ragains’ then soon-to-be new
husband. The evidence at that hearing showed that Ms. Ragains had quit drinking
and that she had started a full-time job at a department store. It also showed that she
was engaged to be married later in the summer and that she wanted to enroll the
children in parochial school. In addition, Ms. Ragains described her plans for the
children including academics, sports, and extracurricular activities. When asked


                                          -4-
directly why she wanted sole custody of the children, she said, “Well, a lot of things
have changed.”


      On August 5, 1997, over two and one-half years after Mr. Gorski filed his
petition, the general sessions court entered its order finally resolving the custody
issue. The court found that Mr. Gorski had been aware of Ms. Ragains’ abuse of
alcohol when he originally agreed to give her sole custody of the children. The court
also determined that Ms. Ragains no longer abused alcohol and, therefore, that there
had been no “drastic, permanent change since the time of the divorce.” The court
specifically found that the children had fared well while living with Mr. Gorski and
that both parents were currently “capable parents who love their children.” Even
though the court did not find specifically that changing the joint custody arrangement
that had been in place since 1995 would be in the children’s best interests, it
dismissed Mr. Gorski’s petition and directed that “the parties shall revert to the Final
Decree of Divorce of October 31, 1994.” Accordingly, Mr. Gorski was required to
return the children to Ms. Ragains.


                                          II.


      Mr. Gorski raises two related issues with regard to the general sessions court’s
decision in this case. First, he asserts that the court improperly placed the burden on
him during the July 1997 hearing to prove the existence of a material change in
circumstances warranting a change in custody. Second, he asserts that the evidence
does not support the court’s conclusion that there had been no material change in
circumstances since the entry of the original divorce decree. While we have
determined that the general sessions court properly placed the burden of proof on Mr.
Gorski, we find that Mr. Gorski successfully proved that the children’s circumstances
had changed materially since the divorce.




                                          A.


      We turn first to the burden of proof issue. Procedural issues such as this one
are of consequence in custody proceedings because following consistent and correct
procedures is one of the surest ways for the courts to make real the legal system’s


                                          -5-
aspiration to provide equal justice under the law. Procedural rules are particularly
important in domestic relations matters because they provide the chief means for
keeping the exercise of judicial discretion within proper bounds. See Carl E.
Schneider, Discretion, Rules, and Law: Child Custody and the UMDA’s Best-Interest
Standard, 89 Mich. L. Rev. 2215, 2218 (1991) (noting that “family law lives in a
tension between according officials discretion to make decisions and limiting that
discretion by requiring them to follow rules”).


          The procedural rules applicable to this case are both statutory and decisional.
Tenn. Code Ann. § 36-6-101(a)(1) (Supp. 1998) empowers courts to make initial
custody decisions and to change or modify existing custody arrangements “as the
exigencies of the case may require.” Thus, by statute, initial custody decisions are
neither set in stone nor written in sand. While they govern all factual circumstances
known to the trial court up through the time of their rendering, initial custody
decisions do not prevent a trial court from subsequently modifying a custody
arrangement when required by unanticipated facts and subsequently emerging
conditions. See Smith v. Haase, 521 S.W.2d 49, 50 (Tenn. 1975); Adelsperger v.
Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997); Woodard v. Woodard, 783
S.W.2d 188, 189 (Tenn. Ct. App. 1989); McDaniel v. McDaniel, 743 S.W.2d 167,
168 (Tenn. Ct. App. 1987).


          The statutory prerogative to change existing custody arrangements does not,
however, give trial courts a license to shuttlecock children around. In the interest of
continuity and stability, a trial court ordinarily should not consider changing its initial
custody decision until (1) it is satisfied that the child’s circumstances have changed
in a material way since the entry of the presently operative custody decree, (2) it has
carefully compared the current fitness of the child’s parents, and (3) it has concluded
that changing the existing custody arrangement is in the child’s best interests. See
Adelsperger v. Adelsperger, 970 S.W.2d at 485; see also Peters v. Peters, No. 02A01-
9810-CH-00283, 1999 WL 285891, at * 5 (Tenn. Ct. App. May 10, 1999) (No Tenn.
R. App. P. 11 application filed); Knight v. Knight, No. 01A01-9710-CV-00609, 1999
WL 20775, at *1 (Tenn. Ct. App. Jan. 20, 1999) (No Tenn. R. App. P. 11 application
filed); Brown v. Brown, No. 02A01-9709-CV-00228, 1998 WL 760935, at *12 (Tenn.
Ct. App. Nov. 2, 1998) (Farmer, J., concurring) (No Tenn. R. App. P. 11 application
filed).


                                            -6-
       In terms of procedure, the party seeking to alter an existing custody
arrangement must show that the circumstances surrounding the child have materially
changed in a way that could not be reasonably foreseen at the time of the original
custody decision and that the child’s best interests will be served by changing
custody. See Adelsperger v. Adelsperger, 970 S.W.2d at 485; see also Solima v.
Solima, No. 01A01-9701-CH-00012, 1998 WL 726629, at *3 (Tenn. Ct. App. Oct.
16, 1998) perm. app. denied (Tenn. Apr. 19, 1999). This burden remains on the party
challenging the court-ordered custody arrangement, even if that party has obtained
temporary custody of the child, either by agreement or by court order, while the
change of custody proceeding is pending. See Mills v. Mills, 818 P.2d 339, 342 (Idaho
Ct. App. 1991); Winters v. Winters, 617 S.W.2d 585, 590 (Mo. Ct. App. 1981); Miller
v. Miller, 305 N.W.2d 666, 673 (N.D. 1981); Garvin v. Garvin, 271 S.E.2d 413, 413
(S.C. 1980).


       In this case, Mr. Gorski filed the petition to change custody while he was the
non-custodial parent. Accordingly, as the moving party,5 he had the burden of
demonstrating (1) that a material change in circumstances had occurred, (2) that he
was comparatively more fit than Ms. Ragains to be the children’s custodian, and (3)
that it would be in the children’s best interests for him to be the custodial parent. The
fact that the children had been temporarily in his custody since 1995 did not shift the
burden to Ms. Ragains.




                                              B.


       No one-dimensional statement of the applicable legal rules can resolve this
particular case. Real world complexity steals into the equation when we consider, as
we must, that events and lives have not stood still while this custody dispute has been
in the courts. At this stage of the proceeding, we cannot ignore the fact that all the
parties’ circumstances are not the same as they were when they were last before the
trial court.



       5
         The moving party retains the burden of proof and persuasion with regard to motions and
petitions pertaining to child custody. See Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn. 1990);
Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. Ct. App. 1993).

                                              -7-
      Drawing from common sense observation, experience, and child development
theory, child custody law places a value on continuity and stability in children’s lives.
Our decisions reflect this belief. See, e.g., Taylor v. Taylor, 849 S.W.2d 319, 328
(Tenn. 1993); Adelsperger v. Adelsperger, 970 S.W.2d at 485; Contreras v. Ward,
831 S.W.2d 288, 290 (Tenn. Ct. App. 1991). Thus, while human behavior rarely
lends itself to neatly drawn lines of direct cause and effect,
             The notion is that to grow and flourish a child is entitled to
             and needs the security of a permanent place with
             permanent ties to a parent figure; moreover, even
             occasional environmental or familial changes, as well as
             the threat or fear of such changes, will undermine the
             child’s sense of stability and therefore the child’s comfort
             and security.

National Interdisciplinary Colloquium on Child Custody, Legal and Mental
Perspectives on Child Custody Law: A Deskbook for Judges, § 20:1, at 238 (1998).


      Prompt resolution of custody matters can help provide children with stability
and continuity. See King v. King, No. 01A01-9110-PB-00370, 1992 WL 301303, at
*2 (Tenn. Ct. App. Oct. 23, 1992) (No Tenn. R. App. P. 11 application filed).
Therefore, while we recognize that custody disputes are often among the most
difficult cases for courts to satisfactorily resolve, their prompt and conclusive
dispositions serve everyone’s best interest. Gallagher v. Adkins, No. 87-342-II, 1988
WL 34085, at *5 (Tenn. Ct. App. Apr. 15, 1988) (Koch, J., concurring) (No Tenn. R.
App. P. 11 application filed).


      On occasion, trial courts will be compelled to make temporary alternations of
custody decisions in order to safeguard the children and to protect the integrity of the
judicial process. See King v. King, 1992 WL 301303, at *2. Temporary alterations
of existing custody arrangements should be limited to circumstances where clear and
convincing evidence shows that a child is being harmed or is about to be harmed
where he or she is. See Gallagher v. Adkins, 1988 WL 34085, at *6 (Koch, J.,
concurring). They should, in virtually all circumstances, amount to nothing more than
a preliminary decision that one or the other parent will keep the children until a
reasonably prompt full hearing on custody can be held. See Fountain v. Fountain,
365 So. 2d 1139, 1142 (La. Ct. App. 1978); Deffenbaugh v. Deffenbaugh, 596 P.2d
966, 971-72 (Ore. 1979).

                                          -8-
      We emphasize this point about post-divorce temporary custody for two
reasons. First, courts should not be too hasty to ignore their previous final custody
decisions when they are called upon to re-enter the divorced parents’ wrangles. Once
a court fashions a permanent custody arrangement, a new family unit forms, and this
new family unit is entitled to be protected from adverturistic governmental intrusion.
See Rust v. Rust, 864 S.W.2d at 55-56 (stating that the concept of custody is
inextricably linked with parents’ rights to be free from unwarranted outside
interference with their child rearing). When courts must intrude into the otherwise
private realm of family life, they should do so in a way calculated to interfere with
the parent-child relationship as little as possible. See Rust v. Rust, 864 S.W.2d at 56;
Neely v. Neely, 737 S.W.2d 539, 542 (Tenn. Ct. App. 1987). It is difficult to imagine
an act intruding into the parent-child relationship more than wrenching a child away
from one parent and giving the child to the other parent, albeit temporarily.


      Second, awards of temporary custody inevitably destabilize the equation for
modifying permanent custody. Quite often, they will insidiously shift the momentum
in the case to the temporary custodian. See, e.g., Bjork v. Bjork, No. 01A01-9702-
CV-00087, 1997 WL 653917, at *2-6 (Tenn. Ct. App. Oct. 22, 1997) (No Tenn. R.
App. P. 11 application filed) (awarding a post-divorce change of permanent custody
to a father following a lengthy award of temporary custody to the father). As we have
previously pointed out, temporary custody, when permitted to continue over a long
period, creates a “new status quo,” and permits the parent with actual custody to
establish a track record that heightens his or her chances of obtaining permanent
custody. See King v. King, 1992 WL 301303, at *2.


                                          C.


      This case, like Gallagher v. Atkins and King v. King, illustrates how the
disposition of a petition to change custody can be rendered more difficult by a
temporary custody arrangement that lasts for an extended period of time. The general
sessions court , downplaying the fact that the children had been in Mr. Gorski’s
custody for approximately twenty-seven months, appears to have based its denial of
Mr. Gorski’s petition to change custody primarily on Ms. Ragains’ successful efforts
to stop abusing alcohol. Whether or not we approve of the court’s use of temporary




                                          -9-
custody in this case, we cannot ignore the extended period of time these children have
spent with Mr. Gorski.


      Any burden Mr. Gorski had to demonstrate a material change in the children’s
circumstances has been met in this case. The most striking change in the children’s
circumstance is that the children had been living with Mr. Gorski rather than Ms.
Ragains. In addition, Ms. Ragains’ expressions of disinterest in her children and her
attempts to abandon them were unforeseen changes in circumstances. Because of
these circumstances, the trial court erred by concluding that there had not been
material changes in the children’s circumstances since November 1994.


      Because this record contains compelling evidence of a material change in the
children’s circumstances since November 1994, the general sessions court should
have proceeded to compare the fitness of Mr. Gorski and Ms. Ragains to be the
custodial parent and then should have determined whether it would have been in the
children’s best interests for them to remain with Mr. Gorski or to return to Ms.
Ragains. In making the best interests determination, the general sessions court should
have taken into consideration the bonding that may have occurred between Mr.
Gorski and the children during the twenty-seven months they were living with him.




      The general sessions court is better situated than we are to compare the fitness
of the parties and to determine the placement for the children that will be in their best
interests. These determinations require the careful balancing of many factors, see
Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Holloway v. Bradley, 190 Tenn.
565, 571, 230 S.W.2d 1003, 1006 (1950); Garner v. Garner, 773 S.W.2d 245, 248
(Tenn. Ct. App. 1989), and may hinge on subtle nuances in the parties’ demeanor and
credibility. See Rutherford v. Rutherford, 971 S.W.2d 955, 956 (Tenn. Ct. App.
1997); Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). Thus,
although this custody dispute has gone on too long as it is, we vacate the order
granting Ms. Ragains sole custody of the children and remand the case with
directions to the general sessions court to receive evidence concerning Mr. Gorski’s
and Ms. Ragains’ current fitness to be custodial parents and then to make a final
custody determination consistent with the children’s best interests. During the




                                          -10-
pendency of this hearing, the children shall remain in the sole custody of Ms.
Ragains.


                                        III.


      The order granting Ms. Ragains sole custody of Jonathon and Haley Gorski
entered on August 5, 1997 is vacated, and the case is remanded for further
proceedings consistent with this opinion. The costs on this appeal are taxed in equal
proportions to John Michael Gorski and his surety and to Linda Emily Ragains for
which execution, if necessary, may issue.



                                            ____________________________
                                            WILLIAM C. KOCH, JR., JUDGE

CONCUR:


_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.


_________________________________
WILLIAM B. CAIN, JUDGE




                                        -11-
