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O'Bannon v. O'Bannon11/20/2003
y 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 . . . ;
(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 preference 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 . . . ;
(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.
Tenn. Code Ann. ยง 36-6-106.
In short, the statutory scheme and our decision in Kendrick provide a flexible framework within which a trial court may consider a number of factors in determining whether to modify a custody decree. Although evidence of substantial harm or harm to the child is certainly relevant to the trial court's determination, the analysis to be applied under Kendrick does not require a finding of harm or substantial harm to establish a material change in circumstances.
In Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. Ct. App. 1996) we held:
Custody and visitation determinations often hinge on subtle factors, including the parents' demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts are reluctant to second-guess a trial court's decisions. Trial courts must be able to exercise broad discretion in these matters, but they must still base their decisions on the proof and upon the appropriate application of the applicable principles of law.
In determining that there has been a material change in circumstances in this case, the Chancellor found that Wife "has had instances of extreme instability, that her current marriage is not stable, that has made bad decisions and judgments concerning the children and these findings along with other findings in regard to the relocation require a change of custody." The Chancellor noted various incidents which compelled him to conclude that there was a material change in circumstances warranting a change of custody in this case. We note two of the incidents referenced by the Chancellor and find that they do constitute material changes which satisfy the three criteria designated in Cranston, ibid.
First, we note the incidence of the previously referenced dog attack upon Grace, the parties' youngest child. This matter occurred after the entry of the divorce decree awarding Wife custody and was not an event reasonably anticipated at that time. The dog, which belonged to Mr. Riddle, was a German Shepard weighing approximately one hundred pounds. The attack occurred while both of the parties' children were in the care and control of Wife and Mr. Riddle and left Grace with head wounds which necessitated emergency room treatment, required twenty one stitches and left permanent scars. At the time of the attack the dog was unrestrained with respect to the childre
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