                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                     On-Briefs June 1, 2005

       CHRISTINE PAMELA SCHOOF GOFORTH v. TERRY JAMES
                          GOFORTH

                A Direct Appeal from the Chancery Court for Tipton County
                No. 21,721  The Honorable Martha B. Brasfield, Chancellor



                      No. W2004-02936-COA-R3-CV - Filed July 12, 2005


       This is an appeal from a final decree of divorce as it concerns custody of the parties' children.
The trial court awarded primary residential custody to Father and provided for visitation with
Mother. Mother appeals asserting that, pursuant to the factors set out in T.C.A. §36-6-106, she
should have been named primary residential parent. We affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Jeffery L. Stimpson of Munford, Tennessee for Appellant, Christine Pamela Schoof Goforth

No appearance by Appellee

                                              OPINION

         Christine Pamela Schoof Goforth (“Mother,” or “Appellant”) and Terry James Goforth
(“Father,” or “Appellee”) were married on November 5, 1988. Two children, Terry James Goforth,
Jr. (d.o.b 11/21/90) and Ryan Andrew Goforth (d.o.b. 9/16/93), were born to the marriage.

       The parties separated on March 15, 2002 and Ms. Goforth filed a “Complaint for Divorce”
on February 12, 2004. A proposed “Temporary Parenting Plan” was also filed by Ms. Goforth on
February 12, 2004. This proposed plan awards custody of the children to Ms. Goforth during the
week and awards alternate weekend visitation to Mr. Goforth. Under “Other Provisions, Restrictions
or Modifications,” the proposed plan requires Mr. Goforth to “exercise his parenting time with the
children in the home of his parents or other family members until he makes necessary repairs to his
house to have a safe environment for the children to reside.”
        On March 11, 2004, Mr. Goforth filed an “Answer and Counter Complaint for Divorce,” in
which he avers that he is the proper person to be named primary residential parent of the parties’
minor children and that Ms. Goforth should have supervised visitation privileges with the children
“due to her living arrangements with a man to whom she is not married.” On March 11, 2004, Mr.
Goforth also filed a “Proposed Temporary Parenting Plan” which awarded custody of the children
to Mr. Goforth during the week and allowed Ms. Goforth supervised visitation on alternate
weekends.

       On April 22, 2004, the trial court entered its “Order on Temporary Parenting Plan.” This
Order reads, in relevant part, as follows:

               1. Father shall be entitled to the immediate return of the children and
               shall be the primary residential parent, pendente lite.

               *                                  *                              *

               4. Mother shall have the standard visitation with the minor children
               and her male friend shall not be present during periods of visitation.

               5. During the months the children are not in school, the parties will
               alternate weeks with the children.

The issue of Ms. Goforth’s child support obligation was reserved pending a hearing. Ms. Goforth
filed her “Answer to Counter-Complaint” on September 30, 2004.

       A non-jury trial was held on September 30, 2004. On November 17, 2004, the trial court
entered its “Final Decree of Divorce,” which reads, in pertinent part, as follows:

               2. The parties are the parents of two (2) minor children....
               Defendant, Terry James Goforth, shall be the primary residential
               parent for the minor children in accordance with the provisions of the
               Permanent Parenting Plan...that is incorporated herein by reference.
               Plaintiff, Christine Pamela Schoof Goforth, shall have the non-
               residential parenting time with the minor children and shall provide
               the support set forth in the Permanent Parenting Plan.

        The “Permanent Parenting Plan,”which was filed on November 17, 2004 and incorporated
by reference into the Final Decree of Divorce, orders Ms. Goforth to pay child support in the amount
of $350.00 per month.




                                                -2-
       Ms. Goforth appeals from the “Final Decree of Divorce” and raises the following issue for
review as stated in her brief:1

                  Whether the trial court abused its discretion in designating the
                  Appellee as the primary residential parent of the minor children of the
                  parties and awarding the Appellant parenting time on alternating
                  weekends, holidays and during the summer.

        Since this case was tried by a 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. Unless the
evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App.
P. 13(d).

       In child custody and visitation cases, the welfare and best interests of the child are paramount
concerns. Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.1997); T.C.A. § 36-6-106
(2001). The determination of the child's best interest must turn on the particular facts of each case.
Taylor v. Taylor, 849 S.W.2d 319, 326 (Tenn.1993); In re Parsons, 914 S.W.2d 889, 893 (Tenn.
Ct. App.1995). In Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App.1983), the Court established some
guidelines for making the determination of the child's best interest:

                  We adopt what we believe is a common sense approach to custody,
                  one which we will call the doctrine of "comparative fitness." The
                  paramount concern in child custody cases is the welfare and best
                  interest of the child. Mollish v. Mollish, 494 S.W.2d 145, 151 (Tenn.
                  Ct. App.1972). There are literally thousands of things that must be
                  taken into consideration in the lives of young children, Smith v.
                  Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949), and these
                  factors must be reviewed on a comparative approach:

                  Fitness for custodial responsibilities is largely a comparative matter.
                  No human being is deemed perfect, hence no human can be deemed
                  a perfectly fit custodian. Necessarily, therefore, the courts must
                  determine which of two or more available custodians is more or less
                  fit than others. Edwards v. Edwards, 501 S.W.2d 283, 290-91
                  (Tenn.Ct.App.1973).

Bah, 668 S.W.2d at 666.

       The trial court must also consider factors set forth in T.C.A. § 36-6-106 (2001), which
provides, in relevant part, as follows:


         1
           Mr. Goforth filed no brief in this appeal and, by Order of May 18, 2005, this Court ruled that “...this matter
is submitted for decision on the record, Appellant’s brief....”

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The court shall consider all relevant factors including the following
where applicable:
(1) The love, affection and emotional ties existing between the
parents and child;
(2) The disposition of the parents to provide the child with food,
clothing, medical care, education and other necessary care and the
degree to which a parent 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;
provided, that where there is a finding, under § 36-6-106(8), of child
abuse, as defined in § 39- 15-401 or § 39-15-402, or child sexual
abuse, as defined in § 37-1-602, by one (1) parent, and that a
non-perpetrating parent has relocated in order to flee the perpetrating
parent, that such relocation shall not weigh against an award of
custody;
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve (12) years of age
or older. 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; provided, that where there are
allegations that one (1) parent has committed child abuse, [as defined
in § 39-15-401 or § 39- 15-402], or child sexual abuse, [as defined in
§ 37-1-602], against a family member, the court shall consider all
evidence relevant to the physical and emotional safety of the child,
and determine, by a clear preponderance of the evidence, whether
such abuse has occurred. The court shall include in its decision a
written finding of all evidence, and all findings of fact connected
thereto. In addition, the court shall, where appropriate, refer any
issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or
frequents the home of a parent and such person's interactions with the
child; and
(10) Each parent's past and potential for future performance of
parenting responsibilities, including the willingness and ability of
each of the parents to facilitate and encourage a close and continuing
parent-child relationship between the child and the other parent,
consistent with the best interest of the child.




                                 -4-
       The presumption of correctness applicable to a trial court's findings of fact pursuant to Tenn.
R.App. P. 13(d), see supra, applies in child custody cases. Hass v. Knighton, 676 S.W.2d 554, 555
(Tenn.1984); Whitaker, 957 S.W.2d at 838. We now turn to the specific facts in this case and view
them in light of the best interests of these children and the criteria set forth in T.C.A. §36-6-106,
supra.

         Concerning the love, affection and emotional ties that exist between the parents and children
in this case, it is clear from the in chambers discussion with the two boys that they both have strong
emotional bonds with both parents. Likewise, it is clear from the record that both parties love their
children. Ms. Goforth, however, has been less than adamant about exercising her visitation with the
children. Although she has not been vigilant in insisting that she be allowed her court-ordered time
with the children, Mr. Goforth has not been forthcoming in allowing Ms. Goforth time with the
children. Despite the fact that neither parent has been model in pursuing or allowing visitation, the
children have developed significant emotional ties with both parents.

        Although Mr. Goforth makes $20.83 an hour as a diesel mechanic and Ms. Goforth makes
between $10 and $11 an hour as a laboratory technician, nothing in the record indicates that either
parent has failed to provide these children with food, clothing, medical care and other necessaries.

        In terms of continuity in these childrens’ lives, they have lived with Mr. Goforth in his home
in Tipton County for the majority of the time before and since their parents’ separation. The older
child, T.J., expressed a preference for staying in his current school and a preference for his friends
living near his Father’s home as opposed to those he had made at his Mother’s home in Southaven.
 Consequently, in terms of continuity and stability, it appears that the boys are better off in their
current arrangement with Mr. Goforth as the primary residential parent.

         Concerning the stability of the family unit of each parent, it appears from the record that this
factor weighs in favor of Mr. Goforth. The record indicates that Ms. Goforth engaged in extramarital
affairs and then, following her separation from Mr. Goforth, lived with a man to whom she was not
married. Although Ms. Goforth testified that this man does not currently reside with her in her
apartment in Southaven, she does admit that he had lived with at her current address at one point.


        As to the mental health of the parties, the record gives rise to some concern about Ms.
Goforth. Ms. Goforth admits that she brandished and actually fired a weapon through a wall in the
family home while she was arguing with Mr. Goforth during the marriage. The children were
present at the time of this incident and Ms. Goforth admits that she knew her children were sleeping
in the house when she fired the weapon. There is also some evidence in the record to suggest that
Ms. Goforth has struck Mr. Goforth in the presence of the children. Consequently, this criterion
weighs strongly in favor of Mr. Goforth.

       Neither of the children indicates a strong preference to live with either parent. Rather, both
boys stated that they wanted to spend equal time (or as much time as possible) with both parents.


                                                  -5-
While the Permanent Parenting Plan names Mr. Goforth as primary residential parent, it gives
substantial parenting time to both parties. Given the respective work schedules of these parties, the
childrens’ schedules, and the specific facts of this case as discussed above, we cannot conclude that
the trial court abused its discretion in naming Mr. Goforth as the primary residential parent or in
dividing the parenting time as set out in the Permanent Parenting Plan. From the record before us,
it appears to this Court that the arrangement outlined in the Permanent Parenting Plan, as
incorporated into the Final Decree of Divorce, represents the best scenario under the circumstances
of this case and is, consequently, in the best interests of these children.

       For the foregoing reasons, we affirm the Final Decree of Divorce. Costs of this appeal are
assessed to the Appellant, Christine Pamela Schoof Goforth, and her surety.




                                              __________________________________________
                                              W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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