                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     May 20, 2010 Session

                                   IN RE MADISON N.J.M.

                      Appeal from the Circuit Court for Knox County
                            No. 112305     Bill Swann, Judge




                  No. E2009-01625-COA-R3-JV - FILED JUNE 28, 2010


This is a case involving the custody of a minor child, Madison N.J.M. (“the Child”). The
Child lived with her mother, K.S. (“Mother”),1 until she was four. After the Child was
adjudicated dependent and neglected, she was placed in the temporary custody of her
maternal grandmother, L.R. (“Grandmother”). Grandmother later sought permanent custody.
 A paternity suit was filed and it was ultimately determined that C.A.M. (“Father”) is the
Child’s biological father. Soon after paternity was established, Father entered into a
mediated agreement which provided that Grandmother would remain as the Child’s primary
caregiver with parenting time for Father. A final order adopting the terms of the mediated
agreement was entered and Grandmother was granted custody of the Child. Father actively
pursued a parental relationship and increased time with the Child; he later sought full
custody. Following a bench trial, the juvenile court ordered a change of custody from
Grandmother to Father based upon its finding of a material change in circumstances and its
determination that custody with Father is in the best interest of the Child. On appeal de novo
to the trial court, the judgment was affirmed. Grandmother appeals. We also affirm.

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

C HARLES D. S USANO, J., delivered the opinion of the Court, in which D. M ICHAEL S WINEY
and J OHN W. M CC LARTY, JJ., joined.

Brandy Boyd Slaybaugh, Knoxville, Tennessee, for the appellant, L.R.

Wayne Decatur Wykoff, Knoxville, Tennessee, for the appellee, C.A.M.


       1
        During the proceedings below, Mother twice petitioned for custody of the Child. Both petitions
were dismissed. Mother did not challenge the final order and is not a party to this appeal.
                                                OPINION

                                                      I.

       The parties stipulated the findings of fact as set forth in the final order of the juvenile
court referee.2 The relevant facts and procedural history of this litigation follow.

       The Child was born to Mother in July 2000; at the time of the final hearing in this
matter she was eight. When the Child was born, Mother was legally married to one man (not
Father) but living with another – her boyfriend, R.S. Father and Mother had dated for a few
months in 1999. According to Father, he ended their relationship when he learned that
Mother was married. Father later learned from a friend that Mother was pregnant but, being
aware that Mother was married and seeing other men besides himself around the time of
conception, he did not pursue a paternity determination. As a result of a paternity action filed
by Mother, Father learned in 2005 that he was the Child’s father. Shortly after his paternity
was determined, Father married T.M. (“Stepmother”).

        In January 2005, Grandmother became the Child’s primary caregiver when Mother
stopped having regular contact with the Child. Mother left the Child and some of her
siblings with Grandmother and went to live with R.S., with whom she had three children.
Mother has a total of nine children including the Child. Three lived with their biological
fathers, three, including the Child, lived with Grandmother, and three lived with Mother and
R.S., their biological father. On January 11, 2005, Grandmother initiated the present case
by filing a petition to declare the Child dependent and neglected and moved for custody of
the Child. The petition, also signed by Mother, indicated that Mother was unemployed and
unable to care for the Child. On that same date, the court entered an order granting
Grandmother temporary legal and physical custody of the Child. Shortly thereafter, a petition
to establish paternity was filed. Father was named as a defendant. While the Child was in
her custody, Grandmother continued to exercise all decision-making and financial
responsibility for her without assistance from Mother. Grandmother maintained private
schooling, family counseling, and individual professional therapy for the Child for the
separation anxiety the Child experienced when Mother left her with Grandmother. Ms.
Cookie Oakley, a licensed clinical social worker, became the Child’s therapist. Ms. Oakley
was also Grandmother’s long-time therapist, having initially provided Grandmother with
counseling for her own, unrelated employment matters since 2000 before she began working
with the Child and her siblings in Grandmother’s care.


        2
         Accordingly, no hearing transcript or statement of evidence is included in the appellate record; as
with the circuit court and the parties, we rely on the extensive factual findings of the juvenile court referee
stipulated to by the parties.

                                                     -2-
        After paternity was established, Father began visiting the Child and paying child
support. At the outset, the child support referee directed that Father would have supervised
visitation with the Child, to be followed in short order by unsupervised visits. Ms. Oakley,
however, did not agree with the referee’s order and recommended that Father’s time with the
Child cease as of May 2005, pending an evaluation of Father and his circumstances and
Father’s attendance at family counseling sessions. In June 2005, at the request of the Child’s
guardian ad litem, Grandmother, Father, and Mother were referred to mediation concerning
Father’s parenting schedule and Grandmother’s pending petition for custody. The parties
reached a mediated agreement filed on June 29, 2005, which provided that Grandmother
would remain the Child’s primary caregiver.3 In addition, Father would have a two-hour visit
with the Child each weekend to commence when recommended by Ms. Oakley. Father’s
schedule with the Child would progress as directed by Ms. Oakley and overnight time with
the Child would only begin under her recommendation. Further, all of Father’s time would
be supervised by Grandmother. The agreement further permitted Mother unsupervised time
with the Child as agreed between Mother and Grandmother.

       A final hearing was held on Grandmother’s petition for custody on November 28,
2005. Neither Father nor his counsel were present. The referee accepted the June 2005
mediated agreement and incorporated it in the court’s final order4 whereby full custody of
the Child was formally awarded to Grandmother and Father was granted time with the Child
pursuant to Ms. Oakley’s recommendations.

        Some six months later, in April 2006, Father filed a “Petition to Enter Permanent
Parenting Plan and Establish Rule 26 Visitation.” Therein, Father asserted that despite his
completion of therapy sessions with Ms. Oakley and parenting classes, he had been permitted
“only minimal day visits” with the Child and wished to exercise “standard overnight
visitation.” An agreed interim order permitted eight hours of unsupervised time with the
Child by Father on alternating Saturdays with a progress review after six to eight weeks. By
agreement, the hearing to review Father’s progress with the Child was continued to January
2007. Prior to that date, however, Grandmother obtained counsel and moved to dismiss
Father’s pending petition for a permanent parenting plan and time with the Child.
Grandmother asserted that Father’s petition failed to allege a material change of
circumstances as required to modify the terms of the November 28 final order. A second
interim order entered in January 2007 continued Father’s weekend time schedule; permitted
Father to obtain an independent psychologist to assist in determining a treatment plan for the


        3
         The mediated agreement is referenced by the juvenile court but is not included in the record before
this Court.
        4
            The final order was entered in November 2006 nunc pro tunc to November 28, 2005.

                                                    -3-
Child; authorized one additional mid-week visit by Father; adopted the parental bill of rights
to allow Father’s interaction with the Child at various school and extracurricular events;
authorized the commencement of overnight time with the Child by Father upon the
agreement of the psychologist Father selected, Dr. Thomas Hanaway, and Ms. Oakley;
denied Grandmother’s motion to dismiss; and continued Father’s pending petition. The
following month, Mother also filed a petition seeking custody of the Child.

       On June 26, 2007, Father petitioned for custody to be changed from Grandmother to
Father. The final hearing was reset for October 2007. In the meantime, Grandmother
approached Father and requested that he surrender the Child to permit Grandmother and her
husband to adopt her. Father declined the request and filed a motion for contempt in which
he alleged that Grandmother had failure to cooperate with Dr. Hanaway in his assessment of
a treatment plan for the Child. On October 10, 2007, an agreed order was entered that
granted Father permission to begin overnight time with the Child for one night every other
weekend in addition to continuing his afternoon visits one day each week. Any further time
with the Child was permitted as recommended by Ms. Oakley and the guardian ad litem. In
addition, Mother agreed to dismiss her custody petition.

       Following negotiations between the parties, another agreed order was entered in
December 2007 that further addressed Father’s time with the Child and co-parenting matters
between Grandmother and Father. Father’s co-parenting time was increased to a full
weekend every other weekend. In addition, Father was to have the Child from the evening
of Christmas Eve until 6:00 p.m. on Christmas Day. Father and Grandmother were ordered
to see Dr. Hanaway for co-parenting counseling and the referee directed that increased co-
parenting by Father would take place as recommended by Dr. Hanaway.

       A bench hearing on the competing petitions for custody of the Child was held over
two days in April 2008. Three days before the hearing, Mother again sought custody of the
Child. In her petition, Mother stated that Grandmother had agreed that Mother was ready to
regain custody. At the hearing, the referee received the custodial evaluation and
recommendations from Dr. Hanaway. Overall, Dr. Hanaway concluded that both
Grandmother and Father could provide the Child with a stable home and “good parenting.”
As summarized by the referee, Dr. Hanaway “did not agree with the time schedule for
progression with [Father’s] visitation implemented by Ms. Oakley (for the [C]hild’s therapist
to evaluate the transition at six month intervals) due to the [C]hild’s progress and the level
of comfort and attachment demonstrated by the [C]hild toward [Father].” Dr. Hanaway
recommended a joint custody arrangement whereby Grandmother and Father would alternate
custody of the Child each week.




                                             -4-
        Ms. Oakley testified that the Child was in a stable environment with Grandmother and
that her attachment issues had been successfully addressed. She acknowledged that the Child
had bonded with Father and that this bond was growing since Father’s time with the Child
had begun. Ms. Oakley supported Mother’s petition for custody because “(a) a female child
needs her mother; (b) the [C]hild lived with [Mother] for the first four years of her life, and
(c) the [C]hild’s strongest attachment has been with [Mother].” 5 Ms. Oakley disagreed with
Dr. Hanaway’s recommendation of a potential shared custody arrangement between
Grandmother and Mother; she endorsed custody of the Child being with Grandmother,
Mother, or a shared arrangement between them as the best options. Ms. Oakley stated that
there would be no negative consequences to the Child from increased contact with Father –
she regarded the issue as being how much time Father should receive. The referee noted that
Ms. Oakley “did not understand why [Father] filed a Petition for Custody because his
visitation was increasing on the schedule she had developed despite [Father’s] feelings that
progress was not occurring quickly enough.”

        Mother testified that Father had sought a relationship with the Child since his paternity
was established and she had no concerns about the Child spending time with him; Mother
was emphatic that Father would be in the Child’s life if she was awarded custody. Among
Mother’s concerns if Father received custody was that Mother would not be able to see the
Child and that the Child had stated she loved Father and wanted to visit him but did not want
to live with him because she would never see Mother or Grandmother again.

       The referee summarized Father’s testimony describing his time with the Child:
“Father has had difficulty seeing the [C]hild – [Father] believed meeting with [Ms. Oakley]
would enable him to move toward a standard visitation arrangement soon after paternity was
established, however, progress from supervised to unsupervised to overnights to weekends
took a long time (the therapist wanted six month intervals to observe each incremental
modification in [Father’s] visitation). . . .” Father recognized the importance of Grandmother
and Mother in the Child’s life and supported their continued contact with her.

       Grandmother explained that she had proposed adopting the Child to maintain the
Child’s emotional welfare but said she intended to maintain the Child’s contact with Father.
Grandmother noted that she had never indicated that Mother could never regain custody of
the Child; she favored Mother regaining custody because she felt Mother had made
significant progress “in getting her life together.” In her testimony on April 11, Grandmother
indicated she would agree to a joint custody arrangement with Father as recommended by Dr.
Hanaway.



       5
           Ms. Oakley’s testimony as summarized by the referee.

                                                   -5-
       At the conclusion of the hearing, the trial court announced its finding of a material
change in circumstances. The court ordered co-parenting time between Grandmother and
Father pending a hearing on May 20, 2008, at which time the court anticipated a final
disposition of the case. Notably, Grandmother’s views had changed since the April hearing.
In her motion for reconsideration of the court’s finding, Grandmother stated she no longer
supported sharing custody of the Child with Father. Further, she stated she no longer
supported returning custody of the Child to Mother.

        The referee conducted her best interest analysis and concluded it was in the Child’s
best interest for Father to be the primary residential parent. In its June 16, 2008, final order
modifying custody, the referee further ordered continued time for Grandmother with the
Child on alternating weekends and some holidays, and day visits by Mother during
Grandmother’s established times. The juvenile court confirmed the referee’s judgment in
all respects.

        On appeal de novo to the Circuit Court for Knox County, the circuit court confirmed
the findings of the juvenile court with one exception pertaining to the juvenile court’s
multiple bases for a change in circumstances. In its order, the circuit court stated in relevant
part as follows:

              The argument presented was a legal argument touching upon
              two issues: (1) whether or not the findings of a material change
              of circumstances surrounding the [Child] by the lower [c]ourt
              constitute a material change under the case law in this State, and
              (2) whether or not the best interest analysis by the lower court
              was accurate.

              The lower [c]ourt found three areas in which there were material
              changes in circumstances such that a change in custody was
              warranted. The first, that Grandmother made a statement during
              testimony that the [Child] should return to . . . [Mother’s]
              custody should she become stable, cannot constitute a material
              change in circumstances which warrants a change in custody.

              The second and third findings, that since August 2005 there has
              been ongoing gender discrimination against [Father] and that
              [Father] has worked extraordinarily hard to expand contact with
              his [Child] against much resistance are confirmed.




                                              -6-
              Upon the finding of the above material change in circumstances
              surrounding this [Child], this Court is in complete accord with
              the best interest analysis presented in the Order of the Juvenile
              Court [Referee]. . . .

       Grandmother filed a timely notice of appeal.

                                              II.

       Grandmother raises issues on this appeal that we restate for clarity:

              1. Did Father sufficiently allege a material change of
              circumstances to support his petition for a change in custody?

              2. Did the trial court err in finding that “ongoing gender
              discrimination” against [Father] and Father’s efforts to expand
              contact with the Child against “much resistance” constituted a
              material change in circumstances sufficient to warrant a change
              in custody?

              3. Did the trial court err in finding that a change in custody was
              in the best interest of the Child?

                                              III.

       The determinations of whether a material change in circumstances has occurred and
where the best interest of the child lies are factual questions. Turner v. Purvis, No.
M2002-00023-COA-R3-CV, 2003 WL 1826223 at *4 (Tenn. Ct. App. M.S., filed April 9,
2003). A trial court’s factual findings are presumed to be correct, and we will not overturn
those factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d)
(2006); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s
conclusions of law under a de novo standard upon the record with no presumption of
correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

      Because of the discretion given trial courts in the primary residential parenting area
and because of the fact-specific nature of these decisions, appellate courts are reluctant to
second-guess a trial court’s determinations regarding residential parenting and visitation.
Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001). Further stated, such decisions
frequently turn on a determination of the credibility of the testimony, and the appellate courts

                                              -7-
are hesitant to reverse the trial courts’ decisions because the trial judge was able to observe
the witnesses and judge their credibility. Adelsperger v. Adelsperger, 970 S.W.2d 482, 485
(Tenn. Ct. App. 1997). Accordingly, this Court will not reverse a trial court’s decision
regarding residential parenting status unless the record clearly demonstrates that the trial
court has abused its discretion. Parker v. Parker, 986 S.W.2d 557,563 (Tenn. 1999). A trial
court abuses its discretion only when it “applies an incorrect legal standard, or reaches a
decision which is against logic or reasoning that causes an injustice to the party
complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)(quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

                                             IV.

        Although Grandmother frames her first issue as contesting the sufficiency of Father’s
pleadings underlying his petition to change custody, we conclude that both her first and
second issues essentially challenge the trial court’s finding that there was a material change
in circumstances sufficient to warrant a change in the primary residential parenting status.
We therefore address the first two issues together. In short, Grandmother asserts that none
of the circumstances relied upon by the lower courts in this case are sufficient to warrant
modification of the earlier decree.

        In Blair v. Badenhope, 77 S.W.3d 127(Tenn. 2002), the Supreme Court announced
the standard applicable in custody modification disputes between a parent and a non–parent
after the non-parent had been granted primary residential parent status. The Court stated:
“A trial court should apply the standard typically applied in parent-vs-parent modification
cases: that a material change in circumstances has occurred, which makes a change in
custody in the child’s best interest.” Id. at 143 (citing, e.g., Nichols v. Nichols, 792 S.W.2d
713, 715-16 (Tenn. 1990)).

       Subsequently, in Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002), the Court
elaborated upon its holding as follows:

              As explained in Blair, the “threshold issue” is whether a
              material change in circumstances has occurred after the initial
              custody determination. Id. at 150. While “there are no hard and
              fast rules for determining when a child’s circumstances have
              changed sufficiently to warrant a change of his or her custody,”
              the following factors have formed a sound basis for determining
              whether a material change in circumstances has occurred: the
              change “has occurred after the entry of the order sought to be
              modified,” the change “is not one that was known or reasonably

                                              -8-
              anticipated when the order was entered,” and the change “is one
              that affects the child’s well-being in a meaningful way.” Id.

(Citations omitted.) The determination of a material change in circumstances is the first step
in a two-part analysis the trial court must apply in resolving a petition to modify a custody
decree. That is, “[i]f a material change in circumstances has occurred, it must then be
determined whether the modification is in the child’s best interest[].” Id.

       In the present case, in determining that a material change of circumstances had
occurred, the referee found in relevant part as follows:

              The mediated agreement signed by [Father, Mother, and
              Grandmother] on 6-28-05 definitively states that [Grandmother]
              would like for [Father and Mother] “to be actively involved in
              [the Child’s] life and for everyone to get along.”

                                          *   *     *

              The requirement of showing a material change in the [Child’s]
              circumstance is to establish finality and stability for the
              [Child’s] placement when considering future custody and
              visitation issues by ensuring the focus is on the [Child].

              The testimony presented by [Grandmother] that the [Child]
              should be returned to [Mother’s] custody when [Mother] is
              stable (which was endorsed and recommended by the [Child’s]
              therapist) establishes that a material change has occurred which
              materially affects the [Child] in that [Father] has been placed in
              a subordinate and auxiliary role with [Mother] viewed as having
              a more superior parental role than agreed to in the Final Order -
              [Grandmother] is willing to restore custody of the [Child] to
              [Mother] if [Mother] does not pose a substantial risk of harm to
              the [Child], but is not willing to transfer custody of the [Child]
              to [Father] based upon the same analysis despite his
              demonstrated stability, his established relationship with the
              [Child], and his demonstrated . . . commitment to parenting the
              [Child].

              The [Child’s] continued placement in [Grandmother’s] custody
              is subject to change based upon both personal and gender-

                                              -9-
              specific discrimination against [Father] by [Grandmother] and
              the [Child’s] therapist (the [Child’s] therapist testified that a
              female child needs to be with her mother) which was not
              anticipated from the agreed Final Order entered in 2005.

              [Father] has been required to seek the Court’s intervention to
              obtain progressive contact with the [Child] and [Father]
              continued to have less than standard visitation recommended by
              the [Child’s] therapist after two years of incremental expansion
              despite the therapist’s testimony that the [Child’s] emotional and
              behavioral problems stemming from her separation from
              [Mother] were under control in March 2007 and the [Child] was
              bonding to [Father] ([Father] was not able to move to overnight
              visitation with the [Child] until he had secured an independent
              Custody Evaluation from Dr. Thomas Hanaway who
              recommended an immediate move to overnight visitation for
              [Father] with the [Child] in October 2007).

(Parenthetical information in original; paragraph breaks inserted for ease of reading). In
summary, the referee concluded that “ a change in circumstances has occurred that materially
affects the [Child] based upon (a) the change in the stability of the [Child’s] placement with
[Grandmother] and (b) the discrimination against the developing parental role of [Father]
with the [Child] by [Grandmother] and the [Child’s] therapist. . . .”

       Initially, we note our agreement with the circuit court’s conclusion that,
Grandmother’s testimony at trial, in and of itself, cannot constitute a material change in
circumstances to support a change in custody. In order to justify a change in a custodial
arrangement, there must be “such a change in circumstances as will directly affect the
welfare of the minor.” Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. App. 1981).
Grandmother’s expressed preference for the Child to be returned to Mother’s custody when
Mother became stable is not a “circumstance” at all, but merely a statement of her opinion.
The referee, however, did not rely on Grandmother’s statement in isolation in concluding that
a change of circumstances had occurred. As noted, the referee further found that
Grandmother and Ms. Oakley discriminated against Father by opposing his efforts at
expanded contact with the Child despite the growing bond between the two of them and the
Child’s own desire to see Father more. Father was eventually forced to turn to the courts to
gain even “standard” time with the Child. The referee summed up Father’s difficulties
regarding parenting time in an order declaring the case extended and complex as follows:




                                             -10-
              Despite all the “agreed” orders in this matter, there was little
              agreement. [Grandmother] consistently acted to prevent or delay
              [Father’s] building a relationship with the [C]hild. It took over
              2 years for [Father] to get court ordered “standard visitation.”
              He did everything the Court asked of him and everything the
              two therapists asked of him.

              At all times, we awaited the ok from therapists to move forward
              with increased visits. [Father] had to file petitions with this
              Court at each stage of the proceedings in order to get that which
              had been previously ordered.

        The evidence does not preponderate against the referee’s conclusion, confirmed by
the circuit court, that the circumstances surrounding the Child had materially changed.
Clearly, Grandmother and Ms. Oakley opposed any arrangement whereby Father might gain
full or even partial custody of the Child. Grandmother indicated her preference that her own
daughter, Mother, regain custody, while Ms. Oakley held a firm belief that a female child
belongs with her mother. In our view, the discriminatory sentiments of Grandmother and
Ms. Oakley against Father’s potential parenting role led them to resist his efforts to expand
his relationship with the Child by ensuring that his relationship with the Child progressed as
slowly as possible. Although a part of its subsequent analysis of the best interest of the
Child, we find the following language best sums up the court’s findings regarding a material
change of circumstances as well. The referee found as follows:

              The original agreement mediated in 2005 between [Mother,
              Father, and Grandmother] set goals for each in their
              relationships with each other and with the [C]hild: (1) [Father]
              “would be a permanent, regular, loving dad to [the Child],” (2)
              [Mother] would “remain in [the Child’s] life as her mom,” and
              (3) [Grandmother] “will remain [the Child’s] primary caregiver”
              and “would like [Father and Mother] to be actively involved in
              [the Child’s] life, and for everyone to get along.”

                                          *    *     *

              [Grandmother’s] plans for the [C]hild’s future stability have
              ranged from adoption to returning the [C]hild to [Mother].
              [Father’s] success in establishing a relationship with the [C]hild
              and the [Father’s] importance in the [C]hild’s life have been
              minimized by [Grandmother] and [Ms. Oakley]. [Father] has

                                              -11-
              persisted in overcoming all obstacles placed before him in his
              efforts to gain greater access to his daughter – with those
              obstacles arising from [Grandmother and Ms. Oakley] who
              indicated she would support [Mother] regaining custody . . . but
              would not consider [Father] to be an appropriate custodian
              because a female child needs to be with her mother.

                                          *   *      *

              A significant amount of distrust has developed between [the
              parties] regarding their level of cooperation due to the prolonged
              transition schedule imposed for [Father] during the preceding
              three years.

        As can be seen throughout its final order, the referee found that there was a change
in circumstances surrounding the Child from the situation that existed at the time the parties
entered into the 2005 mediated agreement – the basis of the earlier custody decree.
Grandmother, who had agreed to remain the Child’s primary caregiver, revealed that she
would not oppose returning custody to Mother, but would not support awarding custody to
Father in the future despite her acknowledgment of his stability. As Father became frustrated
with the slowly progressing co-parenting schedule and eventually sought a formal parenting
plan and then custody of the Child, Grandmother opposed his efforts in court while Ms.
Oakley maintained lengthy intervals between any increases in Father’s contact with the
Child. In opposing Father’s petition for a permanent parenting plan, for example (in which
Father proposed a residential schedule of 234 days with Grandmother and 131 days with
Father), Grandmother asserted that Father had failed to establish a material change in
circumstances and emphasized that Father had failed to establish that it was in the Child’s
best interest to have expanded visitation with Father “against [Ms. Oakley’s]
recommendation.” (Emphasis in original motion.) Clearly, this was not the arrangement
Father had anticipated when he initially agreed that Grandmother should remain the Child’s
caregiver in 2005 and completed sessions with Ms. Oakley in an effort to gain regular time
with the Child; the referee noted that from June 2005 through October 2007, Father had been
limited to day visits on Ms. Oakley’s recommendation. Moreover, within its best interest
analysis, the referee found that “the delays in expanding [Father’s] visitation with the [C]hild
have interfered with the natural progression of the [C]hild’s attachment to [Father].” In our
view, this finding also evidences a material change in circumstances regarding Father’s
developing relationship with the Child “that affects the child’s well-being in a meaningful
way.” Cranston v. Combs, 106 S.W.3d 641, 644 (Tenn. 2003).




                                              -12-
       The facts presented do not preponderate against the finding of a change in
circumstances that materially affected the Child based on the discrimination and resistance
against Father and against his efforts to develop his parental role in the Child’s life.

                                              V.

        Having determined that Father proved a material change in circumstances, the second
part of the analysis was triggered and the referee properly turned to consider the best interest
of the Child. As discussed earlier, if a material change in circumstances has occurred, the
best interest analysis must follow. Kiesling v. Keisling, 196 S.W.3d 703, 718 (Tenn. Ct.
App. 2005). To determine what is in a child’s best interest, the court considers the relevant
factors enumerated in Tenn. Code Ann. § 36-6-106. Those factors include:

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

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

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

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

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

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

                                              -13-
              (9) The character and behavior of any other person who resides
              in or frequents the home of a parent or caregiver and the
              person’s interactions with the child; and

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

       Here, the referee considered each factor and made extensive findings of fact in its best
interest analysis. As to a majority of the factors, the referee ranked Grandmother and Father
equally. Her finding that the best interest of the Child was served by placing her in Father’s
care turned on its consideration of three factors. Accordingly, we set out the referee’s
findings as to those specific factors:

              (1) The love, affection, and emotional ties existing between
              [Father, Mother, Grandmother and the Child] – The Child’s
              therapist indicates the child’s greatest bond is with her mother;
              however, the mother has not maintained regular or significant
              contact with the child since 2005 and the child’s mental health
              diagnosis of Adjustment Disorder stems from the separation
              anxiety the Child experienced when originally separated from
              her mother and placed with [Grandmother]. The child is bonded
              to [Grandmother] and the Child’s therapist indicates the child
              has “two mothers” – [Mother and Grandmother] both occupy
              that role with the Child. The Child has established a bond with
              [Father] during the three years he has been visiting with the
              Child under the direction of the Child’s therapist despite the
              slow transitioning to expanded contact. The Child refers to all
              her family members in a positive manner and has ranked
              [Grandmother and Father] almost equally in describing their
              relationship with her – the Child’s responses actually ranked
              [Father] as slightly higher than [Grandmother] as caregivers.
              The Child’s therapist has indicated it would be devastating for
              the Child to separate[ ] her from individuals to whom she has a
              strong attachment. Behavioral and emotional problems have not
              been exhibited by the Child since March 2007. The Child has

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overcome significant barriers to establish a bonded relationship
with a father she did not know until 2005 after being separated
from [Mother] who had been her primary caregiver for the first
four years of the Child’s life. The Child’s requests to increase
her visitation with [Father] outweigh the Child’s reported
comments that she does not want to live with [Father] – the
Child is reported to have stated a fear she would not see [Mother
or Grandmother] again if she resides with [Father] which is
similar to the statement made . . . during [Mother’s] testimony
(the parties were ordered not to discuss the pending Court
proceedings with the Child or while the Child was present and
the similarity of the Child’s concern to [Mother’s] statement
suggests the Child has been privy to or part of conversations
previously proscribed by the Court). The Child’s relationship
with [Father] is remarkable due to the trust issues the Child
would have had to overcome with [Father] (given [Mother’s]
significant departure from the Child’s life) and the obstacles
imposed on [Father] in his attempts to develop a relationship
with the Child. The Child’s representation of [Father] [having]
a higher ranking than [Grandmother] is also significant given
the amount of time each has been in the Child’s life. In the
analysis of this best interest factor, [Father] is higher than
[Mother or Grandmother].

                            *    *     *

(3) The importance of continuity in the child’s life and the
length of time the child has lived in a stable and satisfactory
environment – The Child has resided continuously with
[Grandmother] since 2005 when custody was removed from
[Mother].      The original agreement between [Mother,
Grandmother, and Father] indicated the Child would reside with
[Grandmother] and would have an on-going relationship with
her parents. [Grandmother] has provided the Child with a stable
and nurturing environment and arranged individual counseling
to address . . . separation anxiety and adjustment issues . . . .
[Father] had not been in the Child’s life until 2005 when DNA
testing confirmed he was the Child’s biological father. [Father]
immediately began the process of establishing a relationship
with the Child, despite restrictions imposed on [Father] by the

                                -15-
child’s therapist as a result of the Child’s reaction to her
separation from [Mother]. [Father] has been steady and
persistent in his attempts to have a normal relationship with the
Child. [Father] has been able to gain the Child’s trust because he
has not been absent from her life since he learned he was her
father. [Mother’s] contact with the Child has not been as
consistent as [Father’s] contact ([Mother] testified she would see
the Child either two to three times per week or on alternate
weeks) and [Mother] has no set or reliable schedule for
visitation (which would appear to have been important in
treating a child with separation anxiety). The [Child] has made
significant progress in overcoming the stress and anxiety she
experienced with [Mother’s] departure . . . and the [Child] has
responded positively to [Father’s] love, attention, and
commitment to her welfare. [Father and Stepmother] have
provided the [Child] with a stable and nurturing environment
during the [Child’s] expanding visitation and it is a household
where the [C]hild has indicated she wants to spend more time.
[Grandmother] and the [C]hild’s therapist testified that the
[C]hild should be placed with [Mother] when [Mother] is
“stable” which suggests continuity for the [C]hild will be
changing in the future by agreement between [Mother] and
[Grandmother]. If changes in the [C]hild’s placement are
anticipated, “continuity” should be defined as “commitment to
the [C]hild” – [Father] has demonstrated his unfaltering
commitment to parenting the [C]hild regardless of the hurdles
he must overcome. [Father’s] steadfast commitment to his
daughter has contributed to her in overcoming the anxiety she
experienced when [Mother] relinquished her role as caregiver .
. . – a role [Father] has been striving to obtain. With
“continuity” being evaluated as “commitment to the [C]hild,”
[Father] ranks higher than [Mother or Grandmother] on this best
interest factor.

(4) The stability of the family unit of [Father, Mother, and
Grandmother] – [Father] learned through DNA testing that he
was the [C]hild’s father shortly after his marriage to [Step-
mother]. [Father] began a steady and persistent course of action
to establish a relationship with the [C]hild with the continued
support of his wife. [Father and Stepmother] obtained temporary

                               -16-
              . . . custody of [Father’s] two grandchildren and are providing
              appropriate care and supervision for those two children. [Step-
              mother] has demonstrated her commitment to her husband and
              to her husband’s children and grandchildren by including the
              children in her family and assuming responsibility for the
              children’s care and supervision. Dr. Thomas Hanaway had the
              opportunity to interview [Father and Stepmother] and indicated
              no concerns about [them] as caregivers for the [C]hild. [Mother]
              reported no concerns regarding [Father’s] household and
              [Grandmother] acknowledged that [Father] was “stable.”
              [Grandmother] was determined to be an appropriate resource for
              the [C]hild when she was originally awarded . . . custody in
              2005. [Grandmother’s] household continues to be an appropriate
              resource for the [C]hild and for the other grandchildren residing
              in [her] household.

                                          *    *     *

              The family unit of both [Father and Grandmother] can offer the
              [C]hild stability; however, the greater involvement of Step-
              mother in assisting [Father] in the care of the [C]hild results in
              a higher ranking for [Father] over [Grandmother].

Tenn. Code Ann. § 36-6-106(a)(1),(3), and (4). (All emphasis in original).

        Here, the referee considered the pleadings, the testimony of the parties, the Child’s
therapist, and the guardian ad litem, an evaluation by Dr. Hanaway, and the entire record, and
found that Father “ranks higher overall in his steadfast determination to provide stability for
the [C]hild and to establish an enduring relationship with [the Child]” in ruling that a
modification of custody was in the Child’s best interest. On our review, the evidence does
not preponderate against the referee’s findings, as adopted by the trial court, regarding the
best interest of the Child.

       “[A] trial court’s decision regarding custody or visitation should be set aside only
when it ‘falls outside the spectrum of rulings that might reasonably result from an application
of the correct legal standards to the evidence found in the record.’” Curtis v. Hill, 215
S.W.3d 836, 839 (Tenn. Ct. App. 2006)(quoting Eldridge v. Eldridge, 42 S.W.3d 82, 88
(Tenn. 2001)). In the present case, the referee correctly applied the law to the evidence
presented and concluded that there has been a material change in circumstances and that the
Child’s best interest is served by a change of the primary residential parenting status from

                                              -17-
Grandmother to Father. The juvenile court and the circuit court confirmed the referee’s
findings, analysis, and conclusions in support of its custody determination. The evidence
does not preponderate against the common decisions of these courts.

                                             VI.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
L.R. This case is remanded to the trial court, pursuant to applicable law, for enforcement of
the court’s judgment and for the collection of costs assessed below.


                                                    _________________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                             -18-
