                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                     January 24, 2013 Session

            DEMETRY MICHELE ALLEN v. HARRY LEE ALLEN, JR.

                Direct Appeal from the Chancery Court for Madison County
                         No. 67343     James F. Butler, Chancellor


                     No. W2012-00541-COA-R3-CV - Filed April 3, 2013


The question presented by this appeal is which parent should be named the primary
residential parent of the parties’ minor child. The trial court named Appellee Mother primary
residential parent. Appellant Father appeals. Discerning no error, we affirm and remand.1

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and H OLLY M. K IRBY, J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Harry Lee Allen, Jr.

Lanis L. Karnes, Jackson, Tennessee, for the appellee, Demetry Michelle Allen.

                                               OPINION

                                            I. Background

       Appellee Demetry Michelle Allen (“Mother”) and Appellant Harry Lee Allen, Jr.
(“Father”) were married in 1998. At the time of the marriage, Mother had one child, a
daughter, from a previous relationship. During the marriage, the parties had one child
together, Brandon, born in 1998. Mother filed for divorce on October 26, 2010. At that
time, both parties were still living in the marital home. Father filed his answer and counter-
complaint on December 9, 2010. Eventually, Mother filed an answer to Father’s counter
complaint on April 11, 2011. The issue in this case revolved solely around the question of
which parent should be named the primary residential parent of Brandon. Accordingly, we

       1
           This case was assigned to Judge Stafford on March 8, 2013.
will not tax the length of this opinion with a full recitation of the various pleadings and
rulings contained in the record that have no relevance to the issue presented in this appeal.

        A pendente lite hearing regarding various divorce issues was held on December 13,
2010. On December 15, 2010, the trial court entered a letter ruling, in which it temporarily
named Mother primary residential parent. Mother was ordered to facilitate reasonable
visitation with Father dependent on his unpredictable work schedule. At the hearing, the trial
court also denied Mother’s request for exclusive possession of the home. Because both
parties remained in the marital home, the trial court ordered them to evenly divide the
household expenses, including the mortgage. Despite the trial court’s order, however,
Mother subsequently moved out of the home into a rental, as discussed in more detail below.

        The trial court held another hearing on April 19, 2011 to consider the issues of a
temporary parenting plan and temporary child support. The trial court entered an order on
these issues on June 20, 2011. In the order, Mother was named the primary residential parent
and Father was awarded essentially standard visitation.

        The trial court held a final hearing on September 12, 2011 and November 16, 2011.
Both parents testified that they were the primary caregiver for the child. Mother further
testified that Father had failed to follow the plan previously entered by the Court and that
he would often appear at her home to take the child without any prior notice. In addition,
Mother testified that Father sometimes fails to spend time with Brandon during his regularly
scheduled parenting times. Mother stated that, although she wants Father to adhere to the
ordered plan, she has no objections to the child spending additional time with Father, so long
as proper notice is provided and the additional time does not interfere with any plans she
may have made with the child. In contrast, Mother testified that she did not believe that
Father was willing to facilitate a close and loving relationship between her and the child,
noting that Father had enrolled the child in tutoring without informing her and that Father
often did not return the child at the agreed upon time, or notify her when the child would be
returned late. In addition, Mother testified that Father failed to pay child support for several
months despite the trial court’s order that he do so. Because of Father’s failure to pay child
support, Mother was required to rely on gifts from friends to survive. According to Mother’s
testimony, if Father were named the primary residential parent, the child would be required
to go to a different school. Mother testified that the child was doing “great” in school,
making “As and Bs,” and that it was important to stay in the same school district. Mother
testified that she had attended all of the child’s parent teacher conferences in the last year,
but that because of time constraints on the teacher, she was only able to meet with the
teacher on one occasion. Further, Mother testified that she and the child participate in
community activities together, such as Boy Scouts. Mother also testified that she had some
concerns about a motorcycle club that Father had previously participated in, as well as some

                                              -2-
of the unsavory establishments Father had taken the child to. Mother finally testified that she
did not want her son to testify in court because she thought it was not “healthy.”

       Mother also testified concerning an incident in March 2010 when she and Father had
an altercation. According to Mother, she and Father were engaged in a fight that turned
physical, with Father holding Mother down and choking her. When Father left to go into the
bedroom, Mother believed that he was going to his gun safe to procure a weapon.
Accordingly, she called the police. By the time the police arrived at the home, however,
Father had taken the child and left.

        Finally, Mother and another witness testified about an incident that occurred in
December 2010 while Mother was moving out of the marital home. Mother testified that she
feared for her life as well as the life of her son. Accordingly, despite the trial court’s order
that Mother pay one-half of the mortgage expenses, Mother decided to move from the
marital home into a rental home. While Father was away with Brandon, Mother hired a
moving truck and recruited several of her friends to help her move her belongings to the new
rental home. Father arrived home in the middle of the move. According to the witness, upon
seeing strangers removing the furnishings from his home, Father pulled his registered hand
gun, which he had a permit to carry. Father informed those moving the things from the home
that the house was his and asked them to stop moving his things. The individuals replied that
they were simply moving the furnishings as Mother’s request and would not unload those
items that had already been loaded into the moving truck. Subsequently, Father went into
the house and located Mother. According to the witness, Father pointed the gun at Mother
and told her to remove the furnishings from the moving truck. At this point, the witness sent
a text message to her husband who was a police officer. He and other police officers soon
arrived on the scene and Father was arrested. After Father was arrested, Mother continued
to move many of the furnishings from the home. The marital home was later returned to the
mortgagee pursuant to a deed in lieu of foreclosure agreement. Father subsequently moved
into an apartment.

        Upon cross-examination, Mother admitted that she had spent a great deal of time
trying to advance her career, first obtaining her Master’s Degree and then participating in
Leader Jackson, a leadership training group that encourages its members to participate in
various community social and civic events. Mother testified, however, that those events did
not interfere with her ability to parent her son, and instead were an effort to further her
career and increase her income. In addition, Mother admitted on cross-examination that her
older child had a child out of wedlock. Mother testified, however, that she did not believe
that her daughter’s decision to have a child reflected poorly on her parenting skills with
regard to Brandon.


                                              -3-
        Father next testified that he spent the majority of the time with the child both
throughout the marriage and after the separation. Father testified that despite the trial court’s
temporary order, he actually spent substantially more time with the child throughout the
week than previously ordered. Father testified that while he had previously been required
to work some night shifts and weekends at his job, he had been promoted to a new position
that allowed him to work regular hours. Thus, Father was able to spend more time with the
child than previously expected when the trial court entered the temporary parenting plan.
Father explained that Mother acquiesced in this arrangement because it allowed her to attend
social events in order to further her career. In addition, Father testified that Mother does not
try to interfere with his relationship with the child because she knows that they are close.
Father further testified that he participates in his son’s after school activities, including
attending all of Brandon’s baseball practices and games, procuring after school tutoring for
Brandon due to his falling grades, and taking the child on various weekend excursions,
including to Nashville and Orlando, Florida. The child’s baseball coach corroborated
Father’s testimony that he is more involved than Mother in Brandon’s athletics. Father
further testified that he did not like his child being around his half-sister, because Father
perceives, based on past experiences, that the sister is not a good influence. Mother
previously admitted that an altercation occurred between Father and her daughter regarding
an incident in which Father alleges daughter engaged in inappropriate behavior while in the
home with Brandon. However, Mother denies that anything inappropriate occurred or that
the daughter is unfit to be around Brandon.

       Father also testified that he is very involved at his son’s school, meeting with the
teacher several times a year and corresponding by email several times a week. Father
explained that his son seemed to be having trouble with his school work as a result of the
divorce, so he enrolled the child in after school tutoring. Brandon’s teacher corroborated this
testimony, stating that Father is very concerned about Brandon’s grades and that, while she
has met and spoken with Father on several occasions, she has only met Mother once at a
scheduled parent-teacher conference. Father also testified that he had researched the high
school that Brandon would be required to attend should Father be named the primary
residential parent. According to Father, the school in Father’s district is more advanced
academically than the school in Mother’s district, which is considered a failing school.

       Finally, Father testified that, although he had displayed his firearm on the day in
question, when he arrived at the marital home and did not immediately see Mother
accompanying the strangers removing his personal belongings from the home without his
permission, he legitimately believed that he was being robbed. In addition, Father denied
that he ever pointed the gun at Mother or at anyone else at the home. Father admitted that
he was arrested but that he was “finishing up” a probationary term and that the crime would
go off his record soon. Father further testified that Mother had previously called the police

                                               -4-
due to the March 2010 incident, supra, but that he was never charged with any crime
regarding that altercation and that he had never been physically violent toward her.

       The child was also allowed to express his preference outside the hearing of the
parties. The child stated that he wished to live with his Father on a “full-time basis” and that
he spends several nights a week with his Father despite the trial court’s previous parenting
plan. The child specifically stated that he wanted to live with Father because Father helps
the child with his homework.

       After taking the matter under advisement, the trial court issued a letter ruling on
December 5, 2011, in which it declared the parties divorced, classified and divided the
marital property, named Mother primary residential parent, set a permanent parenting plan,
ordered Father to pay child support, and awarded Mother a judgment on the child support
arrearage. On March 13, 2012, the trial court entered an order memorializing the letter
ruling, stating with regard to the custody issue:

                      In making a comparative analysis between the parties
              competing for custody, the Court finds that both parties have
              appropriate love and affection for the child and both parties are
              willing to provide support. Both parties have adequate financial
              means with which to provide support.
                      The Mother has been the primary caretaker in the past,
              more so than the Father. This comparison is not meant to
              diminish the Father’s involvement with the child, but simply a
              finding of the facts.
                      The child is 13 years old and makes good grades. He
              would be required to transfer schools if he resides with Father.
              The continuity provided by the Mother is an important factor in
              this case. Mother has been more willing to communicate about
              the welfare of the child in an appropriate fashion than has the
              Father.
                      While Father has involved the child in activities, and
              involved himself in the child’s sports, the Mother has involved
              the child in other endeavors, and has been involved with his
              school as much as Father has.
                      Neither person has any person residing in the home or
              who frequents the home who would have a bad character or
              behavior. Mother expressed concern about some of Father’s
              motorcycle club friends, but provided no proof of bad character.
                      Both parties have adequate residences for the child. Both

                                              -5-
              seem to have the ability to instruct, inspire and encourage the
              child to prepare for a life of service. It is fortunate that the Court
              has two excellent parents in this case.
                      The child currently is residing with the Mother who is
              providing a stable and consistent environment. She has sought
              residence in the child’s current school zone.
                      Neither party’s employment schedule would interfere
              with their ability to care for the child.
                      Father had at least one incident of bad judgment when he
              found Mother moving from the marital residence and resorted
              to pulling a loaded weapon on some of her friends as they were
              moving. While this is somewhat diminished by the fact that
              Father did not know about the move in advance, it gives the
              Court pause as to his judgment.
                      While the child has indicated a preference to actually
              reside with the Father, and the Court has considered that
              preference, the child is only 13 and his preference does not
              trump best interest.
                      The Court finds that Mother is comparatively more fit to
              have the Primary Residential Parent Status. Therefore, Mother
              will be designated as Primary Residential Parent.

Father filed a timely notice of appeal.

                                     II. Issue Presented

     Father raises a single issue on appeal: Whether the trial court erred when it named
Mother primary residential parent of the child?

                                          III. Analysis

       The sole issue in this case is whether the trial court erred in naming Mother primary
residential parent. Because this case was tried by the court sitting without a jury, we review
the case de novo upon the record with a presumption of correctness of the findings of fact
by the trial court. Tenn. R. App. P. 13(d). In applying the de novo standard, we are mindful
that “[t]rial courts are vested with wide discretion in matters of child custody and that the
appellate courts will not interfere except upon a showing of erroneous exercise of that
discretion.” Hyde v. Amanda Bradley, No. M2009-02117-COA-R3-JV, 2010 WL 4024905,
at *3 (Tenn. Ct. App. Oct.12, 2010) (citing Johnson v. Johnson, 169 S.W.3d 640, 645
(Tenn. Ct. App. 2004)). Because “[c]ustody and visitation determinations often hinge on

                                               -6-
subtle factors, including the parents' demeanor and credibility during . . . proceedings,”
appellate courts “are reluctant to second-guess a trial court's decisions.” Hyde, 2010 WL
4024905, at *3 (citing Johnson, 169 S.W.3d at 645). Accordingly, appellate courts review
a trial court's decision regarding which parent to name as the primary residential parent for
an abuse of discretion. See Fulbright v. Fulbright, 64 S.W.3d 359, 365 (Tenn. Ct. App.
2001) (citation omitted); see also Porter v. Porter, No. M2012-00148-COA-R3-CV, 2013
WL 313838, at *14 (Tenn. Ct. App. 2013) (Kirby, J., concurring) (declining to reverse the
trial court’s ruling only because of the “high standard” required under abuse of discretion
review). “[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)). Thus, it is not within the province of appellate courts to tweak a
parenting plan in hopes of achieving a better result than the trial court. See Eldridge, 42
S.W.3d at 88. As our Supreme Court has explained,

              When no error in the trial court's ruling is evident from the
              record, the trial court's ruling must stand. This maxim has
              special significance in cases reviewed under the abuse of
              discretion standard. The abuse of discretion standard recognizes
              that the trial court is in a better position than the appellate court
              to make certain judgments. The abuse of discretion standard
              does not require a trial court to render an ideal order, even in
              matters involving [parental responsibilities], to withstand
              reversal. Reversal should not result simply because the appellate
              court found a “better” resolution. See State v. Franklin, 714
              S.W.2d 252, 258 (Tenn. 1986) (“appellate court should not
              redetermine in retrospect and on a cold record how the case
              could have been better tried”); cf. State v. Pappas, 754 S.W.2d
              620, 625 (Tenn. Crim. App. 1987) (affirming trial court's ruling
              under abuse of discretion standard while noting that action
              contrary to action taken by the trial court was the better
              practice); Bradford v. Bradford, 51 Tenn. App. 101, 364
              S.W.2d 509, 512–13 (1962) (same). An abuse of discretion can
              be found only when the trial court's ruling 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. See, e.g., State ex. rel Vaughn v. Kaatrude, 21
              S.W.3d 244, 248 (Tenn. Ct. App. 2000).


                                               -7-
Eldridge, 42 S.W.3d at 88. The trial court's discretion, however, is not unbounded. Hogue,
147 S.W.3d at 251 (citation omitted). The court must base its decision upon proof and apply
the appropriate legal principles. Id. (citation omitted).

        “By statute as well as case law, the welfare and best interests of the child are the
paramount concern in custody, visitation, and residential placement determinations, and the
goal of any such decision is to place the child in an environment that will best serve his or
her needs.” Burden v. Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App. 2007) (quoting
Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL 2346000, at *5 (Tenn.
Ct. App. Oct. 15, 2004)). “In choosing which parent to designate as the primary residential
parent for the child, the court must conduct a ‘comparative fitness’ analysis, requiring the
court to determine which of the available parents would be comparatively more fit than the
other.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah,
668 S.W.2d 663, 666 (Tenn. 1983)). “In engaging in this analysis, the court must consider
the factors set out in Tennessee Code Annotated § 36-6-106(a).” Ellis, 211 S.W.3d at 286
(footnote omitted). While “there is no statutory requirement that the court list every
applicable factor along with its conclusion as to how that particular factor impacted the
overall custody determination,” the statute nevertheless “requires the trial court to consider
all the applicable factors.”2 Murray v. Murray, No. M2009-01576-COA-R3-CV, 2010 WL
3852218, at *8 (Tenn. Ct. App. Sept.28, 2010). Moreover, this Court has encouraged trial
courts to “be as precise as possible in making child custody findings” in order to facilitate
meaningful appellate review. In re Elaina M., No. M2010-01880-COA-R3-JV, 2011 WL
5071901, at *8 (Tenn. Ct. App. Oct. 25, 2011).

       Accordingly, we will consider each applicable factor contained in Tennessee Code
Annotated Section 36-6-106(a), along with the trial court’s findings and the evidence
contained in the record.

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

The trial court found that both parents have “appropriate love and affection for the child.”
On appeal, the parties do not dispute this finding.

                (2) The disposition of the parents or caregivers to provide the


        2
           This Court has previously expressed concern that the case law holding that trial judges need not
articulate the factors pursuant to Tennessee Code Annotated Section 36-6-106(a) appears to conflict with the
intent of Tennessee Rule of Civil Procedure 52.01. See In re Elaina M., No. M2010-01880-COA-R3-JV,
2011 WL 5071901, at *8 n.13 (Tenn. Ct. App. Oct. 25, 2011).

                                                    -8-
              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;

The trial court found that both parents are “willing to provide support” and have “adequate
financial means.” However, the trial court found that Mother has been the child’s primary
caregiver and, thus, found this factor to weigh in her favor. Father disputes this finding and
points to evidence in the record that shows that he is more involved in the child’s school and
extracurricular activities. The term “caregiver” means “the person or persons or entity or
entities responsible for providing for the supervision, protection and basic needs of the
child.” Tenn. Code Ann. §37-5-501(b)(1). Respectfully, the evidence in the record supports
Father’s contention that he has assumed considerable responsibility for the child’s needs.
The undisputed evidence shows that Father is very involved in the child’s life and spends
a substantial amount of time with the child, both in extracurricular activities and attending
to his basic needs. To rebut this allegation, Mother argues that the trial court previously
named her primary residential parent in an earlier order, giving her substantially more time
with the child. However, Mother admitted in her testimony that Father spends more time
with the child than is reflected in the temporary parenting plan, but that Father does this
without her approval. In addition, Mother testified that she is involved with the child’s Boy
Scouts activities, has attended his parent-teacher conferences, and has emailed with his
teacher. While the trial court’s findings are entitled to a presumption of correctness on
appeal, Tenn. R. App. P. 13(d), we must conclude that the weight of the evidence in the
record shows that both Mother and Father spend significant amounts of time with the child
and that both parents may equally be considered the primary caregiver for the child.
Accordingly, this factor favors neither party.

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

The trial court found that the issue of continuity weighed in favor of naming Mother primary
residential parent because the child had primarily resided with Mother since the parties’
separation and the child would be forced to attend school in a different school district if
Father is named the primary residential parent. The child’s school district at the time of trial
was the same school district as throughout the marriage. The trial court apparently placed
great weight on this factor, noting that it was “important.” Father disputes this finding,
noting that all of Father’s witnesses testified that Father provides the child with a “stable,
satisfactory environment.” The evidence in the record, however, does not preponderate
against the trial court’s finding that the child’s life would be disrupted if he were required
to change school districts. Accordingly, this factor weighs in favor of Mother.

                                              -9-
                  (4) The stability of the family unit of the parents or caregivers;

The trial court did not make specific findings as to this factor. Nothing in the record suggests
that either parent’s home lacks stability. Both parents have stable employment and
appropriate homes for the child. Accordingly, this factor does not weigh in either parties’
favor.

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

The trial court did not make a finding as to this factor. Nothing in the record suggests that
either parent’s mental or physical health would interfere with their ability to parent the child.
.
               (6) The home, school and community record of the child;

The trial court specifically found that the child made “good grades.” Indeed, the record
shows that the child is performing adequately in school and is involved in athletics, Boy
Scouts, and other civic groups. This factor does not weigh in favor of either parent.

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

The child expressed a preference to live with Father.3 While this factor certainly weighs in
favor of Father, we note that the child was only thirteen when he expressed his preference
and that “[t]he preferences of older children should normally be given greater weight than
those of younger children.” Tenn. Code Ann. § 36-6-106(7)(B). In addition, the child’s
preference, while relevant, is only one factor to be considered and is not binding, nor
determinative on the court. See Hoalcraft v. Smithson, 19 S.W.3d 822, 829 (Tenn. Ct. App.
1999); Harris v. Harris, 832 S.W.2d 352, 354 (Tenn. Ct. App. 1992).



        3
          We note that prior to hearing the child’s preference, the trial court did not place the child under oath
in apparent violation of Rule 603 of the Tennessee Rules of Civil Procedure. Rule 603 provides that “[b]efore
testifying, every witness shall be required to declare that the witness will testify truthfully by oath or
affirmation, administered in a form calculated to awaken the witness's conscience and impress the witness's
mind with a duty to do so.” Mother raised this issue to the trial court, who reassured Mother that the child
was not testifying as a witness, but was merely expressing his preference. The issue of the failure to place
a child under oath when expressing his or her preference to the court was previously raised in the case of
Cupples v. Cupples, 1995 WL 650134 (Tenn. App. 1995). The Court concluded that the issue was waived,
however, due to the mother’s failure to raise the issue in the trial court. Id. at *4. In this case, Mother raised
the issue in the trial court, but does not assign the trial court’s failure to place the child under oath as an error
on appeal. Accordingly, the issue is likewise waived. See Tenn. R. App. P. 13(b).

                                                        -10-
              (8) Evidence of physical or emotional abuse to the child, to the
              other parent or to any other person;

Relevant to this factor, the trial court specifically found that Father had engaged in at least
one instance of bad judgment when he pulled his firearm and threatened both Mother and
her companions when she was moving from the home. Father did not deny that he had
brandished a weapon when he arrived home to find strangers moving his belongings from
the marital home, but argued that he was justified in doing so because Mother did not inform
him she was moving. Father also admitted a previous instance where Mother called the
police for domestic violence issues, but stated that Mother’s allegations in that case were
completely unfounded. We agree with the trial court that the December 2010 incident, and
Father’s reaction, is relevant to the question of which parent is comparatively more fit to be
named the primary residential parent. While “[c]ustody decisions are not intended and
should not be designed to . . . punish [parents] for their human frailties or past missteps,”
Curtis v. Hill, 215 S.W.3d 836, 840 (Tenn. Ct. App. 2006); Kesterson v. Varner, 172
S.W.3d 556, 561 (Tenn. Ct. App. 2005); Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App.
2000), a parent’s action which evinces a lack of judgment is certainly relevant to any custody
determination. The trial court specifically found that Father’s action in brandishing a loaded
weapon during this incident “gives the Court pause as to his judgment.” Although Father
proffered some justification for his actions, the evidence in the record does not preponderate
against the trial court’s finding that Father’s action involving the weapon calls into question
his judgment.

              (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;

The trial court specifically found that no other persons reside in or frequent the homes of
Mother or Father that would have a negative impact on the child. Father, however, argues
that Mother’s daughter’s presence in Mother’s home, is a factor that weighs against Mother
being named primary residential parent. The trial court’s order does not mention Father’s
allegations that Mother’s daughter engaged in inappropriate activities in the presence of the
child. Accordingly, the trial court apparently did not credit Father’s testimony regarding the
fitness of Mother’s daughter to be around the child. The trial court's findings on credibility,
whether express or implicit, are entitled to great deference on appeal. See Taylor v.
McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App. Aug.
5, 2008). If the trial court’s factual determinations are based on its assessment of witness
credibility, this Court will not reevaluate that assessment absent clear and convincing
evidence to the contrary.” Franklin County Bd. Of Educ. v. Crabtree, 337 S.W.3d 808, 811
(Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002)). Father

                                             -11-
directs us to no clear and convincing evidence other than his own testimony that would
support a finding that Mother’s daughter is unfit. Accordingly, Father has failed to meet his
burden to show that the trial court erred in discrediting Father’s testimony on this issue. It is
undisputed, however, that Mother’s daughter did have a child out of wedlock. Father cites
no law in which this situation alone has been held to constitute a factor weighing against one
parent in a custody situation. Accordingly, we decline to hold that the fact that a person, who
has had a child out of wedlock, frequents or resides in the home, without some additional
evidence of bad behavior on the part of that person, is sufficient to show that the child at
issue will be exposed to behavior or character that will have a negative impact on the child.
Accordingly, this factor weighs in favor of neither parent.

              (10) Each parent’s 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. In determining the
              willingness 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, the court shall
              consider the likelihood of each parent and caregiver to honor
              and facilitate court ordered parenting arrangements and rights,
              and the court shall further consider any history of either parent
              or any caregiver denying parenting time to either parent in
              violation of a court order.

The trial court found that both parents “have the ability to instruct, inspire and encourage
the child to prepare for a life of service.” However, the trial court also found that “Mother
has been more willing to communicate about the welfare of the child in an appropriate
manner than has the Father.” The evidence shows that Father often took the child for more
than his scheduled visitation and that he enrolled the child in tutoring without first informing
Mother. In contrast, Father testified that Mother has never attempted to interfere with the
close relationship between the child and Father. Accordingly, the evidence does not
preponderate against the trial court’s finding that Mother is the parent more willing to
facilitate a close and loving relationship with the other parent. Thus, this factor weighs in
favor of Mother.

       After a review of the relevant factors, we note that factors 1, 2, 4, 5, 6, and 9 weigh
in favor of neither party. Factors 3, 8, and 10 weigh in favor of Mother and only factor 7,
the child’s preference, weighs in favor of Father. As previously discussed, however, the

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child’s preference is not dispositive when the evidence shows that another arrangement is
in the child’s best interest. See Harris, 832 S.W.2d at 354. In addition, this Court has held
that:

               Ascertaining a child's best interests does not call for a rote
               examination of each of [the relevant] factors and then a
               determination of whether the sum of the factors tips in favor of
               [one parent or the other]. The relevancy and weight to be given
               each factor depends on the unique facts of each case. Thus,
               depending upon the circumstances of a particular child and [his
               or her parents], the consideration of one factor may very well
               dictate the outcome of the analysis.

In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005) (applying the above doctrine
in a termination of parental rights case). In this case, the evidence shows that Mother has
been providing a safe, stable environment for the child and that she has worked to facilitate
a close and loving relationship with Father. Moreover, a change in custody would require
the child to attend a different school district, further disrupting the child’s life, a factor that
the trial court deemed “important.” Although the evidence in the record does show that
Father is very involved in the child’s life and has also served as the child’s caregiver, as
previously discussed, we are required to affirm the trial court's designation of primary
residential parent unless the decision amounts to an abuse of the trial court's discretion. See
Eldridge, 42 S.W.3d at 85. Based on the evidence in the record, we cannot conclude that the
trial court abused its discretion in naming Mother the primary residential parent.

        For the foregoing reasons, the judgment of the Madison County Chancery Court is
affirmed. The case is remanded for further proceedings as may be necessary and are
consistent with this opinion. Costs of this appeal are assessed to Appellant Harry Lee Allen,
Jr., and his surety.



                                                      _________________________________
                                                      J. STEVEN STAFFORD, JUDGE




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