In Re Aiden W.-L.

12/15/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 1, 2022
IN RE AIDEN W.L.
Appeal from the Juvenile Court for Shelby County
No. V8599 Dan H. Michael, Judge
___________________________________
No. W2021-01187-COA-R3-JV
___________________________________
In this custody case, Appellant/Mother asserts that the trial court erred in its best interest
analysis by failing to consider the preference of the minor child under Tennessee Code
Annotated section 36-6-106(a)(13). As such, she contends that the trial court erred in
designating Father/Appellee the primary residential parent. Discerning no error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.
Ada Johnson, Memphis, Tennessee, for the appellant, M.L.1
Gregory S. Gallagher, Memphis, Tennessee, for the appellee, C.L.
OPINION
I. Background
Appellant, M.L. (“Mother”) and Appellee C.L. (“Father”) were never married;
however, they were in a relationship for approximately ten years until they separated in
August 2015. During the course of the relationship, Mother gave birth to four children,
Aiden W.L. (d/o/b June 2007), Madison W. (d/o/b December 2008), Lila W. (d/o/b
December 2008), and Morgan W.L. (d/o/b March 2010).2 The custody of Aiden W.L. (the
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names to
protect their identities.
2
Father is listed on Morgan W.L.’s birth certificate.
“Child”) is the subject of this appeal. As such, we will discuss the procedure concerning
the other children only to the extent necessary to adjudicate the instant appeal.
At the time of Mother and Father’s separation, Aiden was eight years old. Mother
was the primary residential parent of all four children from August 2015 until September
2017, when the parties privately agreed that Father would assume custody of all four
children while Mother attempted to obtain stable housing. In December 2017, Father
dropped the children with Mother for visitation. Mother failed to return the children to
Father, and the instant lawsuit commenced.
On February 2, 2018, Father, acting pro se, filed a petition to rescind his voluntary
acknowledgement of paternity for Morgan W.L. in the Juvenile Court for Shelby County
(“trial court”). As grounds, Father asserted that Mother fraudulently led him to believe that
he was Morgan’s father. Father attached DNA results that he procured through a private
lab, which results showed a 0% probability of Father’s paternity of Morgan. Before
Father’s petition was decided, on June 1, 2018, Mother filed a petition to establish
parentage and set support for the children. A guardian ad litem was appointed to represent
the children.
On January 17, 2019, the trial court Magistrate entered findings of fact and
conclusions of law, wherein she found that court-ordered, DNA testing showed that Father
was not the biological parent of either Madison W. or Lila W. Although Father attached,
to his petition to rescind the voluntary acknowledgement of paternity, a privately-procured
DNA test showing that he was not Morgan W.L.’s biological father, the Magistrate ordered
the parties to submit to another DNA test to establish paternity for Morgan. On February
19, 2019, Father filed a petition for custody/visitation, seeking a custody determination for
Aiden W.L. An attorney was subsequently appointed to represent Mother. On April 19,
2019, the Magistrate granted the parties temporary joint-custody of Aiden W.L. and
continued the hearing on the parties’ respective petitions.
On May 8, 2019, Father filed a motion asking the trial court to hear the reasonable
preference of Aiden W.L. pursuant to Tennessee Code Annotated section 36-6-106(a)(13).
On the same day, Father filed an amended and supplemental petition to be named Aiden’s
primary residential parent. As grounds for his petition, Father alleged that: (1) Mother “has
intentionally and willfully discouraged and failed to facilitate a close continuing
relationship” between Father and Aiden by “intentionally [keeping] the Child from [Father]
since December 2017”; (2) Mother “has intentionally and willfully failed to provide for the
educational needs of the [C]hild”; (3) Mother’s “lack of moral and emotional fitness has
caused the child to suffer mental anguish. Specifically, the lies and deceit of the [Mother]
have caused all of her children to suffer mental anguish by lying to the children that the
[Father] was the natural father of all of the children of the [Mother]”; (4) Mother’s “lies
and deceit to the child and her siblings constitutes ‘emotional abuse’”; (5) Mother’s
“lifestyle has resulted in the [C]hild living in an unstable environment with little or no
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continuity.”
On June 17, 2019, the Magistrate entered an order granting Father’s petition to
rescind his voluntary acknowledgment of paternity for Morgan W.L. based on the fact that
Father was excluded as Morgan’s father through court-ordered DNA testing. After several
continuances and a failed attempt at mediation, Father’s petition to be named Aiden W.L.’s
primary residential parent was heard over three days in November 2019. The Magistrate
did not enter an order on the hearing until November 6, 2020. The Magistrate found a
material change in circumstances based on the following facts: (1) “the [Mother] has been
arrested for neglect”; (2) the [Mother] and her children have lived in hotels, and have been
homeless for some period of time, the [Mother] and the children have lived in a van for a
period of time”; (3) “DNA evidence has been produced of non-paternity of the other three
(3) siblings of the Child”; (4) “that the Child is not in her correct grade level in school, that
proof was presented that the Child might have a learning disability that has not been
effectively dealt with by the Child’s parents”; (5) “that the [Mother] has had a crippling
lack of support system, has lived with the children in crippling poverty, and she has had no
career and no steady stream of income.” The Magistrate went on to consider the best
interest factors set out at Tennessee Code Annotated section 36-6-106, holding that these
factors weighed in favor of Father being named the Child’s primary residential parent. The
Magistrate granted Father’s petition to be named Aiden’s primary residential parent and
awarded Mother 150 days of visitation per year.
Mother moved for rehearing. A special judge was appointed, and the motion was
set for hearing on April 19, 2021. While the motion for rehearing was pending, on
November 30, 2020, Mother filed a motion to set visitation pending rehearing. On April
16, 2021, Father filed a response in opposition to Mother’s motion to set visitation. Father
attached, to his motion, a Germantown Police Department Arrest Information Sheet
showing that Mother was arrested on August 30, 2017 on three charges of “child abuse
(felony) eight years of age or less”; one charge of prostitution; and one charge of “child
abuse (misdemeanor).” Mother moved to quash the Arrest Information Sheet. Although
the record does not contain an order on Mother’s motion to quash, from the trial court’s
final order, discussed infra, it is apparent that the trial court considered the Arrest
Information Sheet in making its decision. On appeal, Mother does not raise an issue
concerning the trial court’s implicit denial of her motion to quash.
On April 19, 2021, the trial court granted Mother temporary standard visitation and
continued the case until May 3, 2021. The case was continued several more times until it
was heard by the special judge on April 19, May 10, and June 21, 2021. On September 7,
2021, the trial court entered its final order granting Father’s petition to be named Aiden
W.L.’s primary residential parent. The trial court found a material change in circumstances
based on: (1) the circumstances surrounding Mother’s August 30, 2017 arrest; (2) Mother’s
misleading Father as to the children’s paternity; and (3) the emotional distress she
perpetrated on the children. Because Mother’s sole appellate issue, infra, involves only
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the trial court’s best interest analysis, we will not elaborate on the sensitive facts giving
rise to the trial court’s conclusion that there had been a material change in circumstances
to warrant naming Father as Aiden’s primary residential parent. Rather, we will focus our
analysis on the trial court’s best interest analysis.
In its September 7, 2021 order, the trial court considered the factors set out at
Tennessee Code Annotated section 36-6-106 and specifically found:3
3
At the time Father filed his petition, Tennessee Code Annotated section 36-6-106 provided, in
relevant part:
(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding
requiring the court to make a custody determination regarding a minor child, the
determination shall be made on the basis of the best interest of the child. In taking into
account the child's best interest, the court shall order a custody arrangement that permits
both parents to enjoy the maximum participation possible in the life of the child consistent
with the factors set out in this subsection (a), the location of the residences of the parents,
the child's need for stability and all other relevant factors. The court shall consider all
relevant factors, including the following, where applicable:
(1) The strength, nature, and stability of the child’s relationship with each parent,
including whether one (1) parent has performed the majority of parenting responsibilities
relating to the daily needs of the child;
(2) 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;
***
(4) The disposition of each parent to provide the child with food, clothing, medical
care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as the
parent who has taken the greater responsibility for performing parental responsibilities;
(6) The love, affection, and emotional ties existing between each parent and the
child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it relates
to their ability to parent the child. The court may order an examination of a party under
Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the
proceedings, order the disclosure of confidential mental health information of a party under
§ 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified
protective order that limits the dissemination of confidential protected mental health
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1. The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child. Following
the separation of the mother and the father, the Court found that the [F]ather
had provided a stable environment for the child while the child was with him
and that the [M]other had not provided stability for the child when the child
was with her. The Court made the following findings of fact for factor 1:
a. The Mother and Father were together for ten (10) years until
they separated in August 2015.
b. The Child was eight (8) years of age when the Mother and
Father separated.
c. The Mother was the Primary Residential parent of the Child
from August 2015 until September 2017.
d. In September 2017, by the agreement of the parties [] Father
became the Primary Residential Parent for all four (4) children
including the Child, until December 2017.
e. In December 2017, the Father dropped all four (4) children
off with the Mother to give her an opportunity to see the
children.
f. Due to the Mother’s intentional actions, the Father was
unable to see the Child until April 2019, when this Court
ordered parenting time for the Father.
g. The Mother was the Primary Residential parent for the Child
until November 2019, when the Court ordered that the Father
information to the purpose of the litigation pending before the court and provides for the
return or destruction of the confidential protected mental health information at the
conclusion of the proceedings;
(9) The child’s interaction and interrelationships with siblings, other relatives and
step-relatives, and mentors, as well as the child's involvement with the child's physical
surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time the child
has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent or to
any other person. The court shall, where appropriate, refer any issues of abuse to juvenile
court for further proceedings;
(12) 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;
(13) 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 preference of older
children should normally be given greater weight than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules;
(15) Any other factors deemed relevant by the court; and
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would be the Primary Residential Parent of the Child.
h. Father was the Primary Residential parent for the Child from
November 2019, until this matter was concluded on June 28,
2021.
i. The Court found both parents were the Primary Residential
parents for the Child for approximately eight (8) years.
j. Mother did not have a stable relationship with the Child when
she was the Primary Residential parent when she lived in a van
and numerous hotels.
k. Father did have a stable relationship and environment for the
Child when he was the Primary Residential Parent and he had
a strong relationship with the Child.
The Courts findings favored the Father for factor 1.
2. 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 the other of the child’s
parents, consistent with the best interest of the child. The Court made the
following findings of fact for factor 2:
a. After the Father obtained the DNA results excluding him
from being the father of all of the children but Aiden, he
attempted to see Aiden but he was told by Mother that he could
either see “them all or none of them.”
b. During the time period from September 2017 to December
2017, when Father had all four (4) children he encouraged the
Mother to see the children but Mother only saw the children
two (2) times for a brief time. Mother claimed she did not have
a place to stay to have the children with her.
c. During the period from December 2017 to April 2019 the
Mother kept the Father from seeing said child and the Father’s
only contact with the child was through a messaging app.
d. Beginning in November 2019, the Father tried to facilitate
visits with the Mother but she was uncooperative, claiming
since she did not have a court order, she did not know she could
see said Child.
e. The Mother admitted making derogatory vile remarks about
the Father in the presence of the Child.
The Court’s findings favored Father for factor 2.
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***
4. The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care. The Court made the
following findings of fact for factor 4:
a. Following the separation of the Mother and the Father, the
Mother lived with the Child and was homeless for a time, lived
in a van, and lived in hotels.
b. In addition, during the above period, Mother kept the Child
out of school for a full year.
c. When the Court ordered the Child to live with the Father in
November 2019, the Child was two (2) grades behind the
school grade she should have been in.
d. The Court found that after the Child went to live with the
Father, the Mother told the Child to do badly in school.
e. The Mother tore up a child support check given to her by the
Father, and Mother claimed she did this because the check did
not go through the Court.
f. After the Child went to live with the Father, the Father got
the Child into counseling, [and] got the Child in a summer
school program to help with her education.
g. The Father has provided stability, a support system, food and
clothing since the Child has been living with him.
The Court findings favored Father for factor 4.
5. The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibilities. The Court made the
following findings of fact regarding factor 6:
a. The Court referred to the timeline laid out in factor 1, and
the Court incorporated said timeline by reference.
b. The Court found that the Child had been living with the
Father since November 2019, and that the Father had been the
primary residential parent.
The Court's findings favored Father for factor 5.
6. The love, affection, and emotional ties existing between each party and the
child. The Court made the following findings of fact for factor 6:
a. The Child’s psychological records from Compass Mental
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Health were entered into the record.4
b. The Court found that in the Compass records for the Child
(specifically page 5 of 67 pages) that the Child’s main triggers
were caused by her Mother.
c. The Court found the Child loved both her Mother and her
Father
The Court findings of fact favored the Father for factor 6.
7. The emotional needs and development of the child. The Court made the
following findings of fact for factor 7:
a. The Compass assessment records for the Child (specifically
page 5 of 67) showed that the Child was a 13-year-old African
American female with a history of depression and anxiety and
trauma related to neglect by Mother.
b. The Compass records further showed the Child was
overwhelmed by the custody dispute between the Mother and
the Father.
c. The Compass records showed the Child had been diagnosed
with a major depression disorder and generalized anxiety
disorder, parent/child relationship problem.
d. The Court found the Child needed treatment.
e. The Father got the Child into treatment.
f. The Father has a family support network necessary to raise a
teenage girl.
The Court findings favored Father for factor 7.
8. The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The Court made the following
findings as to factor 8:
a. The Court found that the Mother placed the Child in
positions where she experienced trauma. Specifically, the
incident regarding the arrest of the Mother in Germantown,
Tennessee. when she left the children alone in a vehicle while
she engaged in sex for money.
b. The Court also found that the Mother exposed the Child to
trauma when she thought it was in the Child’s best interest to
have her children read their own DNA results on video.
4
The Child’s records from Compass Mental Health are not included in the appellate record.
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c. The Court found Father had suffered depression issues but
that did not affect his ability to parent the Child.
The Court’s findings favored Father for factor 8.
9. The child’s interaction and interrelationship with siblings, and other
relatives and step relatives, and mentors as well as the child’s involvement
with the child’s physical surroundings, school, or other significant activities.
The Court made the following findings of fact for factor 9:
a. The Court found that the Child had four (4) siblings living
with Mother.
b. The Court found that the Child has a paternal cousin living
with her and the Father.
c. The Court found that the Child had a support system with
the Father of a paternal grandmother, and two (2) paternal
aunts.
d. The Court found the Father got the Child into school and
into counseling.
The Court’s findings for factor 9 favored Father.
10. The importance of continuity in the child’s life and the length of time the
child has lived in a stable satisfactory environment. The Court made the
following findings of fact for factor 10:
a. The Court found the Father had been in the same apartment
. . . for five (5) years.
b. The Court found the Child has been living with the Father in
a stable environment since November 2019.
c. Mother does not have a stable environment; she is living in
a home inherited by her brother without a lease, and the house
is scheduled for a tax sale in November 2021.
d. Prior to moving in the house she is living in, Mother was
homeless living in a van and in hotels.
The Court’s findings for factor 10 favored Father.
11. Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The Court made the following findings of fact for
factor 11:
a. The Court referred to the earlier trauma inflicted by the
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Mother as to her arrest and the paternity issue with the children.
And those findings are incorporated herein by reference.
b. The Court found the Mother called the Father derogatory
names in front of the Child.
c. That the Father testified that the Child told him that the Child
had been duct taped by her siblings at the Mother's request and
the Child was beaten.
d. That the Father testified that the Child told him that the Child
was given bread and water on occasion when the other children
were given normal meals.
e. That the Child told the Father that she did not want to get the
Mother in trouble when speaking with DCS and the Child
denied the abuse.
f. Mother admitted whipping the Child with a belt when the
Child was younger.
g. The Court did not find any abuse of the Child on the part of
the Father.
The Court’s findings of fact favored the Father on factor 11.
12. 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.
The Court made the following findings of fact for factor 12:
a. The Court found the Mother lives in a home with the Child’s
. . . siblings.
b. The Court found the Father lives in an apartment with a
paternal cousin who helps the Child with her school work.
The Court’s findings of fact did not favor either the Mother or the Father for
factor 12.
***
14. Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules. Based on the Mother’s
instability and lack of consistent employment, the Court found that she had
more available time for the Child vs. the Father who had had a consistent job
with the Memphis Fire Department for many years. The Court made the
following findings of fact for factor 14:
a. The Court found that the Mother cleans houses but that had
dropped off to a couple of houses due to Covid.
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b. The Court found that the Father was a firefighter/paramedic
with the City of Memphis Fire Department.
c. The Court found that Father works three (3) days a week,
each shift being 24 hours.
d. The Court found that the paternal grandmother, the paternal
cousin, and the paternal aunts help out with the Child while
Father is at work.
The Court found that if you look at sheer availability for parenting time, this
factor favors Mother.
15. Any other factors deemed relevant by the Court. The Court made the
following findings of fact for factor 15:
a. The Court reiterated the findings of fact regarding Mother’s
arrest and the paternity issue but the Court did not go back into
the detail of those factors.
b. The guardian ad litem advocated that it was in the best
interest of said Child that custody be awarded to Father.
The Court found that factor 15 favored Father.
Based on the foregoing findings, the trial court named Father the Child’s primary
residential parent and awarded Mother limited, supervised visitation. The trial court’s
ruling on Mother’s visitation was premised on “the active warrant being outstanding for
Mother, the fact that the Mother is a trigger for the Child, and [] on the Mother’s
traumatization of the Child.” Mother filed a timely notice of appeal to this Court. The trial
court subsequently rejected Mother’s proposed Tennessee Rule of Appellate Procedure
24(c) statement of the evidence. As such, the appellate record is comprised of two volumes
of technical record and three exhibits. There is no transcript or statement of the evidence.
II. Issue
Mother raises one issue for review as stated in her brief:
Whether the trial court erred in weighing the factors of Tenn. Code Ann. §
36-6-106 to determine the best interest of the Child by failing to hear
testimony from the Child.
III. Standard of Review
We are “‘mindful that trial courts are vested with wide discretion in matters of child
custody.’” Schaeffer v. Patterson, No. W2018-02097-COA-R3-JV, 2019 WL 6824903, at
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*4 (Tenn. Ct. App. Dec. 13, 2019) (quoting Johnson v. Johnson, 165 S.W.3d 640, 645
(Tenn. Ct. App. 2004)). Appellate courts will not interfere with a trial court’s custody
determination absent an abuse of discretion. Dungey v. Dungey, No. M2020-00277-COA-
R3-CV, 2020 WL 5666906, at *2 (Tenn. Ct. App. Sept. 23, 2020) (quoting C.W.H. v.
L.A.S., 538 S.W.3d 488, 495 (Tenn. 2017)). This Court may reverse a custody decision
“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.”
Dungey, 2020 WL 5666906, at *2 (quoting C.W.H., 538 S.W.3d at 495). “This Court’s
‘paramount concern’ is the well-being and best interests of the child . . . .” Schaeffer, 2019
WL 6824903, at *4 (citing Johnson, 165 S.W.3d at 645). In C.W.H., the Tennessee
Supreme Court “emphasized the limited scope of review to be employed by an appellate
court in reviewing a trial court’s factual determinations in matters involving child custody
. . . .” C.W.H., 538 S.W.3d at 495 (citing Armbrister v. Armbrister, 414 S.W.3d 685, 692-
93 (Tenn. 2013)). Pursuant to Tennessee Rule of Appellate Procedure 13, “appellate courts
must presume that a trial court’s factual findings on these matters are correct and not
overturn them, unless the evidence preponderates against the trial court’s findings.”
Armbrister, 414 S.W.3d at 693 (citations omitted).
In the instant case, our review is further limited by the fact that there is no transcript
or Tennessee Rule of Appellate Procedure 24(c) statement of the evidence. In addition,
some of the exhibits considered by the trial court, e.g., the Child’s records from Compass
Mental Health, are not included in the appellate record. It is well settled that in cases where
no transcript or statement of the evidence is filed, the appellate court is required to presume
that the record, had it been properly preserved, would have supported the action of the trial
court. See Fayne v. Vincent, 301 S.W.3d 162, 169-70 (Tenn. 2009) (“[W]hen an issue of
sufficiency of the evidence is raised on appeal, we must presume, in the absence of a record
of the proceedings, that the transcript or statement of the evidence, had it been included in
the record, would have contained sufficient evidence to support the trial court’s factual
conclusions.”); Reinhardt v. Neal, 241 S.W.3d 472, 477 (Tenn. Ct. App. 2007) (explaining
that in the absence of a transcript or statement of the evidence, the appellate court had to
presume that the evidence supported the trial court’s findings and ultimate conclusion that
there was a failure of proof); Sherrod v. Wix, 849 S.W.2d 780, 783 (Tenn. Ct. App. 1992)
(“This court cannot review the facts de novo without an appellate record containing the
facts, and therefore, we must assume that the record, had it been preserved, would have
contained sufficient evidence to support the trial court's factual findings.”). Furthermore,
this Court has held that “the burden is . . . on the appellant to provide the Court with a
transcript of the evidence or a statement of the evidence . . . .” Outdoor Mgmt., LLC v.
Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007) (noting the “conclusive presumption
that there was sufficient evidence before the trial court to support its judgment” if no
transcript or statement of the evidence is submitted). With the foregoing in mind, we turn
to the issue.
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IV. Analysis
In addition to the best interest findings set out above, the trial court also made the
following finding under Tennessee Code Annotated section 36-6-106(a)(13):
13. The reasonable preference of the child if twelve years or older. The Court
made the following findings of fact regarding factor 13:
a. This factor was not applicable.
b. The Court found that the Father filed a request for the Court
to hear the Child's preference but the Father withdrew his
request.
c. The Court found that the Child was in counseling and would
be traumatized by having to testify, and the guardian ad litem
advocated against the child testifying.
d. The Court did not hear from the Child.
The Court found factor 13 was not applicable to this case.
Mother challenges the trial court’s decision to exclude the Child’s testimony at trial.
We reiterate that trial courts have broad discretion in fashioning child custody
arrangements that best suit the unique circumstances of each case. Parker v. Parker, 986
S.W.2d 557, 563 (Tenn. 1999). However, that discretion is limited to some degree by the
statutory directive that such determinations “shall be made on the basis of the best interest
of the child.” Tenn. Code. Ann. § 36-6-106(a). In addition, Tennessee Code Annotated
section 36-6-106 requires a court to consider the “reasonable preference of the child if
twelve (12) years of age or older.” See Tenn. Code Ann. § 36-6-106(a)(13) (“The court
shall consider all relevant factors, including the following, where applicable . . . (13) The
reasonable preference of the child if twelve (12) years of age or older.”) (emphasis added).
Nonetheless, the decision to exclude a child’s testimony does not necessarily violate the
statutory mandate. Lutrell v. Wassenburg, No. W2017-02443-COA-R3-CV, 2020 WL
3867131, at *6 (Tenn. Ct. App. July 9, 2020) (citing Hill v. Hill, No. M2006-01792-COA-
R3-CV, 2008 WL 110101, at *6 (Tenn. Ct. App. Jan. 9, 2008) (affirming the trial court’s
custody modification decision although the court excluded an older child’s testimony when
the record indicated that the court knew and considered the child’s preference.)). Indeed,
determining a child’s best interest is a “fact-sensitive inquiry,” and the relevancy and
weight to be given each factor depends on the unique facts of each case. Solima v. Solima,
No. M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July 30, 2015)
(quoting In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005)).
Here, the trial court made clear findings as to why it excluded the Child’s testimony.
Specifically, “[t]he Court found that the Child was in counseling and would be traumatized
by having to testify, and the guardian ad litem advocated against the child testifying.”
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Accordingly, the trial court found that the Child’s preference was “not applicable” to its
best interest determination. A trial court has discretion to control the proceedings in its
courtroom and to make evidentiary decisions, and its decisions will not be overturned
absent an abuse of that discretion. State v. Mosley, 200 S.W.3d 624, 629 (Tenn. Crim. App.
2005); Hessmer v. Hessmer, 138 S.W.3d 901, 904 (Tenn. Ct. App. 2003). Still,
discretionary decisions of a trial court must take applicable facts and legal principles into
account and are not immune from meaningful review on appeal. See Gooding v. Gooding,
477 S.W.3d 774 (Tenn. Ct. App. 2015). “An abuse of discretion occurs when a court strays
beyond applicable legal standards or when it fails to properly consider the factors
customarily used to guide the particular discretionary decision.” Id at 781. Here, the trial
court gave sound reasons for refusing to consider the Child’s preference. In view of the
lack of a transcript, statement of the evidence, and certain relevant exhibits in the record,
we “cannot review the facts de novo”; “therefore, we must assume that the record, had it
been preserved, would have contained sufficient evidence to support the trial court’s factual
findings.”). Sherrod, 849 S.W.2d at 783. Applying this standard, we cannot conclude that
the trial court abused its discretion or otherwise erred in refusing to hear the Child’s
preference.
Nonetheless, even if we assume, arguendo, that the Child’s preference would have
been to live with Mother, the preference of a child older than twelve is but one of many
factors to considered in determining his or her best interest. See Tenn. Code Ann. § 36-6-
106(a). In fact, this Court has held that the child’s preference is not controlling on the trial
court, and it is error for a trial court to base its decision solely on a child’s preference.
Harris v. Harris, 832 S.W.2d 352, 354 (Tenn. Ct. App. 1992). As this Court has explained:
There is good reason for this rule. While a child’s expressed preference may
reflect legitimate and wise reasons, it may just as easily reflect manipulation
by a parent or a successful campaign by one parent to alienate the child from
the other parent. Krupp v. Cunningham–Grogan, No. M2005-01098-COA-
R3-CV, 2006 WL 2505037, at *9 (Tenn. Ct. App. Aug. 29, 2006). However,
when a trial court is reasonably satisfied that a child has not been manipulated
and the child’s reasons for his preference are not frivolous, “it is permissible,
indeed important, to give significant weight to the child’s testimony on the
parent with whom he wants to live.” Maxwell v. Woodard, No.2011-02482-
COA-R3-CV, 2013 WL 2420500, at *19 (Tenn. Ct. App. May 31, 2013).
Robinson v. Robinson, No. M2014-00431-COA-R3-CV, 2015 WL 1259265, at *5 (Tenn.
Ct. App. March 16, 2015). Here, the trial court made numerous findings concerning
Mother’s pattern of manipulating and using the children to prey on Father’s emotions.
Given Mother’s propensity to emotionally manipulate her children, and the trial court’s
finding that Mother is a “trigger” for this Child, it is likely that the Child’s testimony would
be skewed and of no probative value.
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Finally, as set out above, the trial court found that the majority of the Tennessee
Code Annotated section 36-6-106 factors weighed in favor of Father. In the absence of a
transcript or statement of the evidence, we presume that there was sufficient evidence to
support these findings. Because the majority of the factors weigh in favor of Father being
named Aiden W.L.’s primary residential parent, we cannot conclude that the trial court’s
denial of the Child’s testimony would have led to a different result. In short, even assuming
that the trial court erred in omitting evidence of Aiden’s preference, such omission would
be harmless error in view of the trial court’s other best interest findings. Tenn. R. App. P.
36(b) (“A final judgment from which relief is available and otherwise appropriate shall not
be set aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial
process.”).
V. Conclusion
For the foregoing reasons, the trial court’s order is affirmed, and the case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed to Appellant/Mother, M.L. Execution for costs
may issue if necessary.
s/ Kenny Armstrong
KENNY ARMSTRONG, JUDGE
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