comparative fitness analysis in Tennessee

2000Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). -3- In determining the best interest of a child and in engaging in the comparative fitness test, subtle factors such as parents’ demeanor and credibility during the pendency of the divorce trial can be a determining factor for the Trial Court.

1999In this comparative fitness analysis, we must seek, as did the court in Gaskill v. Gaskill, 936 S.W.2d 626 (Tenn. App. 1996).

2022Choosing the primary residential parent involves a comparative fitness analysis, “requiring the court to determine which of the available parents would be comparatively more fit than the other.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. 1983)).

2006Rather, Mother argues that since the best interests of the child is an overriding principle, citing Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983), a comparative fitness analysis must be made, which the trial judge failed to do, and therefore the case should be remanded with instructions.

2008In a proceeding to modify the designation of primary residential parent, however, the trial court “need not repeat the comparative fitness analysis that is appropriate at the time of the original custody decree.” Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), overruled on other grounds as recognized by Kesterson v. Varner, 172 S.W.3d 556, 560-65 (Tenn. Ct. App. 2005).

2001In Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), the eastern section of this court noted that the paramount consideration in custody proceedings is the best interest of the child and that, when the issue is whether to modify a prior custody order, the court need not repeat the comparative fitness analysis set forth in Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App. 1983).

2006Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000); Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998).

2001Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998); Bush v. Bush, 684 S.W.2d 89, 93 (Tenn. Ct. App. 1984).

2008See In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995).

2006In re Parsons, 914 S.W.2d 889, 893 (Tenn. Ct. App. 1995); Bah v. Bah, 668 S.W.2d at 666 .

2015She acknowledges that the parties to this action are both biological parents but claims that this case nevertheless has “a factor of superior parental rights to it.” “In custody disputes between parents and non-parents, the comparative fitness analysis cannot be used because it fails to take into account that the custody claims of biological parents and the custody claims of third parties do not have the same legal weight.” In re B.C.W., No. M2007-00168-COA-R3- JV, 2008 WL 450616 , at *2 (Tenn. Ct. App. Feb. 19, 2008) (citing Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001)).

2010In re Shelby R., No. W2009-01172-COA-R3-CV, 2010 WL 1980195 , at *5 (Tenn. Ct. App. May 18, 2010) (no perm. app. filed). “‘The comparative fitness analysis commonly associated with -5- custody disputes between biological parents cannot be used because it fails to take into account that the custody claims of biological parents and the custody claims of third parties do not have the same legal weight.’” Id. (quoting Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001)).

2000Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App.1997).

2000Adelsperger v. Adelsperger, 970 S.W.2d 482, 485 (Tenn.Ct.App.1997).

2022In re C.K.G., 173 S.W.3d [714,] 732 [(Tenn. 2005)]; Parker v. Parker, 986 S.W.2d 557, 562 (Tenn.1999); see Tenn. Code Ann. § 36-6-106 (2005 & Supp. 2009).

2011In re C.K.G., 173 S.W.3d at 732; Parker v. Parker, 986 S.W.2d 557, 562 (Tenn. 1999); see Tenn. Code Ann. § 36–6–106 (2005 & Supp. 2009).

2009“Only if the court answers this ‘threshold’ question in the affirmative does it proceed to perform a new comparative fitness analysis and then determine whether a new custody and visitation arrangement is in the child’s best interests.” Krupp v. Cunningham-Grogan, No. M2005-01098-COA-R3-CV, 2006 WL 2505037 , at *7 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521 , at *2 (Tenn. Ct. App. Nov. 25, 2003)).

2008“Only if the court answers this ‘threshold’ question in the affirmative does it proceed to perform a new comparative fitness analysis and then determine whether a new custody and visitation arrangement is in the child’s best interests.” Krupp, 2006 WL 2505037 , at *7 (citing Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002); McEvoy v. Brewer, No. M2001-02054-COA-R3-CV, 2003 WL 22794521 , at *2 (Tenn. Ct. App. Nov. 25, 2003)).

1998See Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991); Edwards v. Edwards, 501 S.W.2d at 291 .

1997Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. App. 1983); Edwards v. Edwards, 501 S.W.2d 283, 290 (Tenn. App. 1973).

2022Choosing the primary residential parent involves a comparative fitness analysis, “requiring the court to determine which of the available parents would be comparatively more fit than the other.” Chaffin v. Ellis, 211 S.W.3d 264, 286 (Tenn. Ct. App. 2006) (citing Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. 1983)).

2018See Chaffin, 211 S.W.3d at 286 (“In choosing which parent to designate as the primary residential parent for the child, the court must conduct a ‘comparative fitness’ analysis, requiring the court to determine which of the available parents would be comparatively more fit than the other.”).

2015When faced with “a contest between a parent and a non-parent,” the parent cannot be deprived of custody of his or her child “unless there has been a finding, after notice required by due process, of substantial harm to the child.” Blair v. Badenhope, 77 S.W.3d 137, 142 (Tenn. 2002) (citation omitted).9 “Only then may a court engage in a general „best interest of the child‟ evaluation in making a determination of custody.” Id.

2015When faced with “a contest between a parent and a non-parent,” the parent cannot be deprived of custody of his or her child “unless there has been a finding, after notice required by due process, of substantial harm to the child.” Blair v. Badenhope, 77 S.W.3d 137, 142 (Tenn. 2002) (citation omitted).9 “Only then may a court engage in a general „best interest of the child‟ evaluation in making a determination of custody.” Id.

2007If no material change in circumstances has been proven, the trial court “is not required to make a best interests determination and must deny the request for -5- a change of custody.” Kellett, 206 S.W.3d at 15 (quoting Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)); see also In re Bridges, 63 S.W.3d 346, 348 (Tenn. Ct. App. 2001).

2001See Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999) (stating that courts must, before proceeding with a best interest analysis, “first determine whether there has been a material change in circumstances arising subsequent to the initial decree awarding custody such that the welfare of the child demands a redetermination of custody”) (perm. app. denied April 17, 2000); Placencia v. Placencia, 3 S.W.3d 497, 499 (Tenn. Ct. App. 1999) (“Absent a material change in circumstances…the petition to modify custody must be denied.”) (perm. app. denied September 13, 1999).

2006Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000); Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998).

2002Earls v. Earls, 42 S.W.3d 877, 885 (Tenn. Ct. App. 2000); Gaskill, 936 S.W.2d at 630 .

2006In re C.K.G., 173 S.W.3d 714, 732 (Tenn. 2005); Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001).

2004Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001); Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996).

2005Cranston, 106 S.W.3d at 642, 643 .

2004Cranston, 106 S.W.3d at 642, 643 .

2001Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998); Bush v. Bush, 684 S.W.2d 89, 93 (Tenn. Ct. App. 1984).

2001Rice v. Rice, 983 S.W.2d 680, 682-83 (Tenn.Ct.App. 1998); Bush v. Bush, 684 S.W.2d 89, 93 (Tenn.Ct.App. 1984).

1999On a petition to change custody, the trial court does not simply repeat the comparative fitness analysis done at the time of the original decree; the trial court must first find a material change of circumstances “compelling enough to warrant a change in custody.” Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL 272458 , at *7 (Tenn. Ct. App. May 23, 1997); Short v. Short, No. 03A01-9506-CH-00168, 1995 WL 728521 , at *2 (Tenn. Ct. App. Dec. 11, 1995); see also Wall, 907 S.W.2d at 834 ; Woodard v. Woodard, 783 S.W.2d 188, 190 (Tenn. Ct. App. 1989).

1997Rather, the trial court must first find a material change in circumstances “compelling enough to warrant a change in custody.” Short v. Short, No. 03A01-9506-CH-00168, 1995 WL 728521 , at *2 (Tenn. App. Dec. 11, 1995); see also Woodard, 783 S.W.2d at 189-90 .

1999See Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996).

1997Ruyle v. Ruyle, 928 S.W.2d 439, 442 (Tenn. App. 1996). 3 However, our review of this issue is limited to the record before us.

2022See In re Haily A. S., No. M2011-02760-COA-R3-CV, 2012 WL 3090311 (Tenn. Ct. App. July 30, 2012); cf. In re Alexis S., No. E2018-01989-COA-R3-CV, 2019 WL 5586820 , at *11 (Tenn. Ct. App. Oct. 29, 2019) (citing In re Sidney J., 313 S.W.3d at 776 , in determining a comparative fitness analysis under Tenn. Code Ann. § 36-6-106 to be appropriate when deciding between competing guardianship petitions).

2011Analysis The Riddles argue that the Trial Court erred in failing to conduct a comparative fitness analysis, and rely upon the Supreme Court’s opinion in In re: Sidney J., 313 S.W.3d 772 (Tenn. 2010), which mandates that the court conduct a comparative fitness analysis to determine who should adopt when faced with two competing adoption petitions.

2010In re C.K.G., 173 S.W.3d at 732 ; Parker v. Parker, 986 S.W.2d 557, 562 (Tenn.1999); see Tenn.Code Ann. § 36-6-106 (2005 & Supp.2009).

2006In re C.K.G., 173 S.W.3d 714, 732 (Tenn. 2005); Nelson v. Nelson, 66 S.W.3d 896, 901 (Tenn. Ct. App. 2001).

1999On a petition to change custody, the trial court does not simply repeat the comparative fitness analysis done at the time of the original decree; the trial court must first find a material change of circumstances “compelling enough to warrant a change in custody.” Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL 272458 , at *7 (Tenn. Ct. App. May 23, 1997); Short v. Short, No. 03A01-9506-CH-00168, 1995 WL 728521 , at *2 (Tenn. Ct. App. Dec. 11, 1995); see also Wall, 907 S.W.2d at 834 ; Woodard v. Woodard, 783 S.W.2d 188, 190 (Tenn. Ct. App. 1989).

1997As the trial court noted, “I don’t have any evidence that he’s not a good man.” There is nothing to suggest that Father would not be a proper custodian; but as the Musselman case points out, in a modification case, the trial court “need not repeat the comparative fitness analysis that is appropriate at the time of the original custody decree.” Id. at 922 .

2012Holt, 255 S.W.3d at 608 (holding that “the court erred in conducting a new comparative fitness analysis because it found no material change of circumstance on the subject of the identity of the primary residential parent”).

2012Holt, 255 S.W.3d at 608 (holding that “the court erred in conducting a new comparative fitness analysis because it found no material change of circumstance on the subject of the identity of the primary residential parent”).

2008In a proceeding to modify the designation of primary residential parent, however, the trial court “need not repeat the comparative fitness analysis that is appropriate at the time of the original custody decree.” Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. Ct. App. 1991), overruled on other grounds as recognized by Kesterson v. Varner, 172 S.W.3d 556, 560-65 (Tenn. Ct. App. 2005).

2007If no material change in circumstances has been proven, the trial court “is not required to make a best interests determination and must deny the request for -5- a change of custody.” Kellett, 206 S.W.3d at 15 (quoting Caudill v. Foley, 21 S.W.3d 203, 213 (Tenn. Ct. App. 1999)); see also In re Bridges, 63 S.W.3d 346, 348 (Tenn. Ct. App. 2001).