Dorothy Lewis v. Julie Donoho ( 1997 )

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.