                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON

IN THE MATTER OF:
     BIANCA ARNESHE ASKEW,                    )
                                              )
DOROTHY LEWIS,                                )
                                              )
       Petitioner/Appellee,                   )       Fayette Circuit No. 3807
                                              )       Appeal No. 02A01-9708-CV-00201
vs.                                           )
                                              )
JULIE DONOHO,                                 )
                                              )
       Respondent/Appellant.                  )


                         SEPARATE CONCURRENCE


HOLLY KIRBY LILLARD, J.

       I agree with the result reached by the majority, as well as the standard of proof adopted by

the majority for a non-custodial parent to regain custody from a nonparent custodian. However, I

write separately to clarify my understanding of this standard and its application in this case.

       As noted by the majority, the standard adopted in this case is not the same as the standard

for change of custody as between two parents. While both involve “changed circumstances,” the

standard for a change of custody as between two parents, the court must find a material change in

circumstances “compelling enough to warrant a change in custody.” Short v. Short, No. 03A01-

9506-CH-00168, 1994 WL 728521, at *2 (Tenn. App. Dec. 11, 1995). The behavior of the custodial

parent must “clearly posit[ ] or cause[ ] danger to the mental or emotional well-being” of the child.

Musselman v. Acuff, 826 S.W.2d 920, 923-924 (quoting Ballard v. Ballard, 434 So. 2d 1357, 1360

(Miss. 1983)). Because of the strong interest in stability for children, efforts by the non-custodial

parent to improve his or her circumstances are not sufficient to meet this standard:

       In sum, then, in determining whether to change custody, the noncustodial parent has
       the burden of proving a material change in circumstances, that is, behavior by the
       custodial parent which clearly endangers the well-being of the child. Only after it is
       determined that such a material change in circumstances has occurred does the trial
       court perform a comparative fitness analysis to determine if custody should be
       changed. Efforts by the noncustodial parent to improve his or her circumstances are
       insufficient to support a determination of material change in circumstances; they are
       usually relevant only to the comparative fitness analysis performed after there has
       been a threshold finding of a material change in the circumstances of the custodial
       parent.

Williams v. Williams, Appeal No. 01A01-9610-CV-00468, Tenn. Court of Appeals, Western

Section, 1997 Tenn. App. LEXIS 357 at *8 (filed May 23, 1997).
       In this case, however, involving a custody dispute between a parent and a non-parent, we

must consider the parent’s fundamental right to raise the child. See In re Adoption of Female Child,

896 S.W.2d 546, 548 (Tenn. 1995). The majority in this case holds that the non-custodial parent

must establish “changed circumstances showing that an award of custody to the parent would no

longer result in substantial harm to the child.” The majority breaks this into two prongs: establishing

“changed circumstances,” and then demonstrating “the absence of substantial harm to the child in

the event of custodial modification.”

       To clarify, it is my understanding that “changed circumstances” in this context would mean

establishing that the reason for the initial custody award to the non-parent has been remedied. Once

this is established, in determining whether substantial harm would result from a change in custody,

the Court would consider; inter alia: (1) the non-custodial parent’s efforts to maintain a relationship

with the child and support the child financially, (2) the custodial non-parent’s cooperation with

visitation and the parent’s efforts to maintain a relationship with the child, (3) circumstances in the

home atmosphere of either the custodial non-parent or the noncustodial parent which could be

detrimental to the child, (4) any special needs of the child, and (5) the length of time the child has

lived with the custodial non-parent. The Court must weight the fundamental right of the parent to

raise the child against the child’s need for stability and continuity.

       In this case, the majority states that “the only factual basis upon which Donoho contends

‘changed circumstances’ was established is Donoho’s contention that Lewis failed to cooperate with

Donoho in arranging court ordered visitation.” However, in the trial court below, Donoho presented

evidence that she has a stable home and supportive family members and is able to care for her other

two children. Although the record is apparently unclear about the reason for the original award of

custody to Lewis, this evidence would tend to establish “changed circumstances,” the first prong of

the standard. The majority states that the trial court never reached the second prong, the issue of

whether substantial harm would result from a change in custody. However, the other evidence cited

by the majority, Donoho’s infrequent visitation and irregular payment of child support, would appear

to be relevant to the issue of substantial harm. Under the circumstances, I agree that Donoho overall

failed to present sufficient evidence to satisfy both prongs of the applicable standard.




                                                       HOLLY KIRBY LILLARD, J.
