Opinion
No. E2006-01732-COA-R3-CV.
February 5, 2007 Session.
Filed April 19, 2007.
Direct Appeal from the Chancery Court for Morgan County; No. 06-09; Hon. Donald P. Harris, Senior Judge, Sitting by Designation.
Judgment of the Chancery Court Affirmed.
Jennifer E. Raby, Rockwood, Tennessee, for appellants.
Robert W. Wilkinson, Oak Ridge, Tennessee, for appellees.
Herschel Pickens Franks, P.J., delivered the opinion of the court, in which Charles D. Susano, Jr ., J., and D. Micha El Swiney, J., joined.
OPINION
This is a custody dispute between non-parents — the petitioners, who sought custody of the children with the parents' approval, and the children's grandparents who intervened, asking for custody. After a trial the Trial Court awarded custody to petitioners. On appeal, we affirm.
Petitioners, Forrest Dexter Bradford, Daveeda Gearin Bradford, Michele Green, and Tracy Green, filed a Joint Petition for Custody of two children, NRG (d.o.b. 8/4/1991) and DJG (d.o.b. 6/7/1995) in the Chancery Court for Morgan County on February 1, 2006. The Bradfords sought custody of the children, asserting that they were willing to care for and supervise the children, and were able to provide for them financially. The Greens, who are the biological parents of the children, joined in the Petition, asserting that they could not provide for the children financially, and were giving consent to the Bradfords to have custody. On February 16, 2006, the Court entered an Order of Custody, finding that all necessary parties were before the Court, that the Bradfords were willing and able to provide for and care for the children, and that the parents consented to the Bradfords having custody.
On February 21, 2006, David and Janet Foland filed a Motion to Intervene, asserting that Mrs. Foland was Ms. Green's mother, and as such, was the maternal grandmother of the children at issue.
The Folands asserted that NRG had been living with them since November 2004, and that DJG had been living with them since May 2005. They asserted that they had provided for the children's needs since that time because Ms. Green had no permanent address, no job, no transportation, and had been arrested for possession of drugs, and that she continued to associate with Billy Ray Jenkins, who was known in the community to be a drug dealer and user.
The Folands Petitioned for custody, asserting they were the proper persons to have custody, that the Bradfords were unrelated to the children, and had refused to disclose their current whereabouts to the Folands. They sought a restraining order preventing the Bradfords from removing the children from Tennessee.
The Folands were allowed to intervene, and the Court set the case for trial, and appointed a Guardian Ad Litem. A hearing was held on May 1, 2006, but could not be completed in one day, so the Court ordered the parties to return to court on June 19, and allowed the Bradfords to take the children to their home in Florida in the interim. The Court also allowed the Folands visitation with the children from May 19 to May 27, 2006.
The trial was held and numerous witnesses testified. Following the trial, the Trial Judge entered a Memorandum Opinion which we quote in pertinent part:
This case is before the court on a Petition for Custody filed by Janet Foland, the natural grandmother of the minor children and her husband, David Foland. The minor children are NRG, age 14 and DJG, age 11. This case was initiated by a Petition for Custody filed by Dexter and Daveeda Bradford jointly with the children's natural parents, Michele Green and Tracy Green. Pursuant to the latter petition, the court awarded custody to the Bradfords and the children have resided with them since that time. When the Folands learned of the court's action, they filed a Motion to Intervene and to Alter or amend Order and their own Petition for Custody. Because the Bradfords' initial petition was presented to the court without the knowledge of or notice to the Folands, this court has treated this action as an initial custody determination. Since the natural parents have relinquished custody of the children, they have given up their superior parental rights and the court must then determine whether the best interest of the children would be served by granting custody to the Bradfords or the Folands.
In making this determination, the court has considered the factors set forth in Tennessee Code Annotated section 36-6-106. The court is of the opinion that both couples seeking custody have love and affection for the children and are disposed to provide the children with food, clothing, medical care, education and other necessary care. Mr. And Mrs. Foland has been the primary care givers of the children for significant periods during their lives. Both couples have stable marriages and there is no significant mental or physical health problems that would interfere with either couple's ability to care for the children. The deciding factor for the court is the strong desire of the children, especially NRG, to live with the Bradfords who are now located in the State of Florida. NRG has had an experience which has become known and is embarrassing to her. She sees living with the Bradfords as an opportunity to make a fresh start in a new place where her past experience is unknown. The court is concerned about the potential ramifications of denying her this opportunity. For that reason, continuity of placement and the loss of frequent contact with her extended family who live in the area have been given less weight by the court and the desires of the children given more. The court finds it to be in the best interest of the children for their custody to be placed with the Bradfords.
The court also considers it extremely important that the children maintain a relationship with the Folands. The children may find that life with the Bradfords is not what they expected or they may not flourish under their care. Mrs. Bradford has had health problems in the past and it is possible she could experience a recurrence of these problems such that she would be unable to care for the children. Maintaining a relationship with the Folands insures an alternative should any of these things occur. In accordance with Tennessee Code Annotated section 36-6-306, the court finds the children have had a significant relationship with Mr. And Mrs. Foland, having lived in their home for over six consecutive months, and that the loss of a relationship between the children and their grandparents would present a danger of substantial harm to the children. Accordingly, the court awards the Folands visitation with the children for one continuous week during the summer months and four days during the Christmas vacation. This visitation will be at the home of the Folands with the Bradfords being responsible for transporting the children to and from their home. The times for the visitation will be determined by the Bradfords with reasonable notice to the Folands. In addition, the Folands will have eight additional days visitation each year with the children in the State of Florida. These days may be non-consecutive with reasonable notice to the Bradfords after consulting with them and coordinating with the children's activities.
The issue on appeal is whether the Court erred in granting custody of the children to unrelated residents of Florida rather than the maternal grandparents with whom the children had resided.
Our standard of review in child custody cases is de novo upon the record of the trial court with a presumption of correctness, unless the evidence preponderates otherwise. See Tenn. R. App. P. 13(d); Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984). The paramount consideration in child custody cases is the children's best interests. Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986).
The Trial Judge stated that he had taken into account the factors set forth in Tenn. Code Ann. § 36-6-106, which was appropriate because that section instructs the trial court to "consider all relevant factors in any proceeding requiring the court to make a custody determination regarding a minor child". Of course, the statute recognizes that the best interest of the child is paramount, and "all relevant factors shall be considered, including those listed in the statute".
T.C.A. § 36-6-106(a) . . . in any . . . proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable:
The Trial Court has wide discretion in custody matters, and the Trial Court's decision will not be reversed unless it abuses that discretion. Brumit v. Brumit, 948 S.W.2d 739 (Tenn.Ct.App. 1997). As we have previously recognized, findings of the trial court which are dependent upon determining the credibility of witnesses are entitled to great weight on appeal. Bowman v. Bowman, 836 S.W.2d 563 (Tenn.Ct.App. 1991).
A relevant factor to be considered is the interest of the biological parents. Chief Justice Reid, in Broadwell by Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994) said at p. 475:
The parental right to govern the rearing of a child has been afforded protection under both the federal and state constitutions. This Court has stated, "Tennessee's historically strong protection of parental rights and the reasoning of federal constitutional cases convince us that parental rights constitute a fundamental liberty interest under Article I, Section 8 of the Tennessee Constitution." (Citations Omitted).
Of course, parents' parental conduct can result in a loss of parental rights under our laws, but as long as the parental right exists, the desire of the parent as to placement of his or her child is a factor to take into account in awarding custody of the child to competing third parties.
The statute provides that a child over age 12 may express a preference regarding custody and the court will consider the same, and may hear the preference of a younger child upon request. In this case, both children (ages 14 and 11) expressed the preference to live with the Bradfords. While appellants acknowledge this is one factor to be considered by the Court, they argue it should not be conclusive in custody matters, and should not be treated as controlling.
We have stated on numerous occasions that a child's preference is only one of many factors to be given consideration in a custody determination. See Watson v. Watson, 196 S.W.3d 695 (Tenn.Ct.App. 2005); Hoalcraft v. Smithson, 19 S.W.3d 822 (Tenn.Ct.App. 1999). While a child's preference can be considered, it is not controlling on the court. Wall v. Wall, 907 S.W.2d 834 (Tenn.Ct.App. 1998). This Court has also held that it was error for a trial court to base its custody determination solely on the minor child's testimony regarding preference. Harris v. Harris, 832 S.W.2d 352 (Tenn.Ct.App. 1992). While the Trial Court said that the desires of the children was a deciding factor in its decision, it clearly weighed other factors and circumstances in arriving at its decision. We cannot say the evidence preponderates against the Trial Judge's findings. Tenn. R. App. P. 13(d).
We would echo some of the Trial Court's concerns about this placement of the children, and the importance of the children maintaining a good relationship with the grandparents for the reasons expressed in the Trial Court's Opinion. Certainly, if material conditions change, the Trial Court can revisit the issue of custody to determine what would be in the continuing best interest of the children.
For the foregoing reasons, we affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to the appellants.