Shawn Farien v. Regina Farien ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 20, 2001 Session
SHAWN PATRICK FARIEN v. REGINA CANTRELL
FARIEN (McKINNISH)
An Appeal from the Circuit Court for Shelby County
No. 151944 - 8 R.D. D’Army Bailey, Judge
No. W2000-00656-COA-R3-CV - Filed May 9, 2001
This is a child custody case. The parties and their minor child lived in Tennessee with the
father’s parents. The mother moved to Georgia with the child to live with her parents. Custody was
awarded to the mother, and the father was granted broad visitation rights. The father appeals. We
affirm, finding that the custody award is based in large part on the trial court’s determinations of
credibility and assessment of the parties’ demeanor, and finding that the evidence does not
preponderate against the award of custody to the mother.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
HOLLY KIRBY LILLARD, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J.,
W.S. and DAVID R. FARMER , J., joined.
James D. Causey, David E. Caywood, Marc E. Reisman, Memphis, Tennessee, for the
Plaintiff/Appellant, Shawn Patrick Farien.
Melinda Plass Jewell, Cordova, Tennessee, for the Defendant/Appellee, Regina Cantrell Farien
(McKinnish).
OPINION
In this child custody case, Shawn Patrick Farien (“Father”) and Regina Cantrell Farien (now
McKinnish) (“Mother”) were married on June 26, 1993. At the time of marriage, Father was twenty
years old and Mother was eighteen. The parties had met at a church camp, and soon thereafter,
Mother became pregnant. The parties’ only child, Joshua Perrin Farien (“Perrin”), was born on
September 14, 1993.
Mother, Father and Perrin resided with Father’s parents, Mike and Mary Farien, in
Germantown, Tennessee. Father’s parents purchased their home in anticipation of having Mother,
Father and their child live with them. Father’s parents paid for their wedding and their honeymoon.
At the time of the marriage, Father was full-time student at the University of Memphis, pursuing a
degree in mechanical engineering. He graduated in August 1995. During the marriage, Mother
stayed at home full-time to care for Perrin. In January 1996, Mother left Father’s parents’ home in
Tennessee, taking Perrin with her to her parents’ home in Georgia. Father filed for divorce on April
19, 1996, citing irreconcilable differences and inappropriate marital conduct, and seeking custody
of Perrin.
The parties later agreed to a temporary joint custody arrangement whereby Mother and Father
would have Perrin for alternating two week periods until the issue of custody was resolved by the
court. On July 22, 1997, Mother and Father stipulated the grounds for divorce and agreed to refer
the issue of child custody to Judge Wyeth Chandler for arbitration.
Judge Chandler held the first hearing on July 23, 1997. At the conclusion of the hearing,
Judge Chandler was dissatisfied with the circumstances regarding both Mother and Father.
Consequently, the parties were declared divorced and an award of temporary custody was made,
expressly reserving the issue of permanent custody. After Mother filed a petition to modify custody,
a second hearing was held on July 28, 1999. Thereafter, permanent custody was awarded to Mother.
At the first hearing, Father testified that when the parties married, he was a full-time student
at the University of Memphis, pursuing a degree in mechanical engineering. Father is the only child
of Mike and Mary Farien. Prior to the parties’ marriage, Father’s mother, Mary Farien, had been a
homemaker for twenty years. Mary Farien obtained a full-time job after the parties moved into their
home, in order to have enough money for the needs of all five members of the household.
Father obtained his degree in mechanical engineering in August 1995. However, at the time
of the first hearing, nearly two years later, Father had not obtained employment in his field. Instead,
he worked part-time at a hobby store. He described sending out approximately 200 resumes, to no
avail. He noted that Mother sent his resume to a potential employer in the Nashville area, but that
Father’s mother, Mary Farien, told him that it was “a bad place to work.” Father admitted that he
was unable to support his family financially during the marriage, even after he was no longer a
student, and that they depended on his parents to provide them with room and board. Father said that
his parents paid for several vacations, including a trip to Disney World for the parties, their child and
Father’s parents. Despite the generosity of his parents, Mother and Father still managed to
accumulate over $11,000 in credit card debt during the course of the two and a half year marriage.
Father testified that he and Mother got along fairly well during their marriage, but that he was
concerned about the way she treated Perrin. He stated that Mother showed impatience toward him
and a lack of interest in his well-being. Father described an instance in which Perrin became ill and
began to run a high fever. When Father came home, his parents told him that, although Perrin’s
fever had gone down, they felt he should be taken to the emergency room. Father agreed with his
parents, and they took Perrin even though Mother did not think it was necessary. At the emergency
room, Mother and Father were given a prescription for antibiotics and sent home at approximately
2:00 a.m. Mother thought filling the prescription could wait until morning, so she and Perrin went
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to sleep. Mary Farien and Father felt the medication should be obtained immediately. Father
testified that he took his mother to the 24-hour drug store with him at 2:00 a.m. because he felt
“safer” having her with him to go to a store “in a bad section of town.”
Father also described Mother as less than industrious. He stated that when he came home
in the afternoons, he would find Mother still in her nightgown and Perrin in his blanket sleeper with
a dirty diaper on. He stated that Mother would be watching television, there would be dirty dishes
and dirty diapers lying about, and Perrin would be doing whatever he wanted. He testified that
Mother rarely assisted his family in cooking and cleaning. He said that he and his parents hoped
Mother would help more in cleaning the house, but that “eventually my parents hired a maid” to help
clean. Father said, prior to the parties’ separation, both of them were working part-time. Father
acknowledged that Mary Farien had frequently provided more care of Perrin than he did, citing his
“time constraints.”
Father testified that when Mother left in January 1996, he had no indication that she planned
to leave him. He testified that his mother came home in the mid-afternoon and found a note from
Mother stating that she and Perrin had gone to Georgia and would return. When it became apparent
to him that they were not coming back, Father testified that he tried to make arrangements to visit
Mother and Perrin in Georgia, and that Mother refused, saying that if he came, “there would be
shotguns in the hills waiting for you.” Despite this warning, Father went to Georgia to see Mother
and Perrin. The efforts at reconciliation failed.
Father testified the parties had always agreed to call their son by his middle name, Perrin, but
after Mother moved to Georgia she began calling their son by his first name, Joshua. Father said that
during the initial period of separation, Mother allowed him to speak with Perrin on the telephone,
but refused to let him have visitation. Since that time, the parties had agreed on a temporary
schedule whereby Perrin resided with each party for alternating two-week periods. Father said that
his parents would normally accompany him to Nashville to get Perrin, but that a couple of times, his
mother had gone to pick up Perrin without him.
Since the separation, Father testified that he took Perrin to see a specialist for his speech
difficulties.1 As a result, Father took Perrin for speech therapy sessions while he was in Father’s
care.
Mary Farien testified at the hearing. She testified that she and her husband purchased their
Germantown home to accommodate themselves, Mother, Father, and Perrin. In addition, she began
working full-time outside the home in order to help support Mother, Father, and Perrin. She testified
that she, her husband, and Father encouraged Mother to finish her high school education, and they
helped her enroll in a home schooling program.
1
Father took Perrin to see the specialist at the suggestion of Dr. Stacy Dixon, the psychologist retained by the
Guardian Ad Litem to perform a custody evaluation.
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Mary Farien testified that she became concerned that Mother was not holding Perrin often
enough, and that she was afraid Perrin would bond with her rather than with Mother. She stated that
she “personally felt” that Mother did not attend to Perrin’s needs as she should have, and that she
often came home and found Perrin in diapers that needed to be changed and in a blanket sleeper
when it was clearly too hot for him to be wearing one. She corroborated Father’s version of the
incident in which Perrin was taken to the emergency room with a high fever, and that she thought
the prescription was needed right away, so she went with Father to an all-night drug store in
Memphis to fill the prescription because she did not think it was safe for Father to be alone at night
in the city. 2 She testified that Mother rarely helped cook and clean, and that she, not Mother, was
generally the one who fed Perrin, when she was not at work.
Mother also testified at the July 1997 hearing. She testified that the immediate cause of her
decision to go to Georgia in January 1996 was Father’s insistent denial of her desire to bring Perrin
to Georgia to see her cousin get married. She stated that she did not intend to leave Memphis
permanently, but decided to stay in Georgia after Father came to her parents’ home in Georgia.
Mother testified that living in the Fariens’ home was difficult for her. She said that whenever
she tried to cook or clean, Mary Farien would typically intervene and tell her that she was not doing
something right, and that she found it best to let them handle everything in their home. She denied
leaving Perrin in dirty diapers or leaving dirty diapers lying around the house. Mother described her
frustration at Father’s half-hearted attempts to obtain full-time employment, so that they could move
to their own apartment. She said that Father’s suggestions were that she get a full-time job or that
they move into an apartment funded by his parents. She described telling Father about openings for
engineers at the Nissan plant in the Nashville area, and said that Father refused to apply because he
did not want to work in a factory. She said that she refused Father’s visitation in Georgia initially
on the advice of her lawyer, who advised her to wait until Father had an attorney and a temporary
custody agreement could be reached. She stated once she moved to Georgia, she started working
full-time as a floor tech in a nursing home, and had moved up to becoming a nurse’s assistant. Since
then, in addition to working, she started nursing school at her own expense, had purchased and paid
for a car, and had paid her lawyer’s fees.
On cross examination, Mother admitted that she had not obtained a record of Perrin’s
medical shots and had not taken him to see a pediatrician, even though they had been in Georgia over
a year. She said that she had no religious beliefs that prevented her from seeking appropriate
2
Judge C handler later asked M ary Farien ab out this during h er testimony:
THE CO URT: Now , you’re saying that the reason that you went with him at two o’clock in the morning is because he
shouldn’t be out in the same area at two o’clock?
THE WITNES S: I was concerned about him being by himself at two o’clock in the morning on the streets of Memp his.
THE COURT: That’s - - he’s a 2 4 year old w hite male.
THE W ITNES S: I understand that, sir, yes.
THE CO URT: And you’re worried about him being out at two o’clock in the morning?
THE W ITNES S: Yeah, I was.
THE COU RT: All righ t, go ahead .
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medical treatment for Perrin when he needed it. Mother admitted that she began calling Perrin by
his first name, Joshua, explaining that it was because she did not want Perrin’s first name to nearly
rhyme with his last name, Farien.
The trial court heard testimony from Dr. Stacey Dixon, a clinical psychologist, requested by
by the Guardian Ad Litem to do an evaluation. Dr. Dixon had interviewed Father, Mother, and both
sets of grandparents, and she observed their interactions with Perrin. She found no significant
mental illness in any of the parties. Dr. Dixon recommended that custody of Perrin be placed with
Mother because she was his primary caregiver, and she thought it best not to disrupt that relationship
so long as there was no significant threat to Perrin’s well-being. Judge Chandler heard testimony
from the remaining grandparents and a friend of Father’s as well.
At the initial hearing, Judge Chandler was candid about his concerns about both parties. He
observed that, while there was criticism of Mother’s care of Perrin, there was no question but that
she had been Perrin’s primary caregiver. He stated that he had “a lot of misgivings about both of
these people” and said:
In my judgment, for a man of his age and education to have as little ambition to earn
as little amount of money and to do as little as he’s done is just unbelievable. But
this lady wasn’t doing a lot more . She was doing less.
He described the dispute as “almost a battle between this mama, who has now apparently gone back
to her home in Georgia, and the grandmother.” Commenting on the episode in which Perrin was
taken to the emergency room for a high fever, Judge Chandler said:
That story about the medicine, I’ll never get over that. I don’t know what - - it just
- - it boggles my mind.
***
. . . [Y]ou’ve got some toughening up to do, son. In my opinion, you are a - - you
said you had to get your mama to go down with you to get that medicine. You put
me in a real - - on the spot.
He questioned Mother at length about calling Perrin by his first name, Joshua, after moving to
Georgia, calling it “confusing” and “not good for the child.” He questioned her to be certain that she
did not hold any religious beliefs that inhibited her from taking the child for medical help when
necessary. Observing that both parties needed to be “pushed out of the nest,” Judge Chandler said,
“. . . it’s very difficult to assign the life of a child to somebody who has not established their own
nest for themselves, and that is just something that I don’t think either one of you at this point have
done that.”
In his written findings after the first hearing, Judge Chandler stated that he was unable to
make a decision as to which parent should have permanent custody of Perrin, because neither Mother
nor Father was fully independent and capable of raising Perrin on his or her own. He placed
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temporary custody of Perrin with Father, “so long as he remains a resident of his parents’
Germantown home.” He granted Mother custody during the summer months and during specified
holidays, provided that she remained a resident of her parents’ home in Georgia. He ordered that
when Perrin was with either parent, the other had the right to visitation every other weekend. He
ordered that the parties should share in Perrin’s medical expenses, and that they should refer to him
as “Perrin,” not “Joshua.” In his findings, Judge Chandler stated:
The Court, by virtue of the nature of this Order, is keeping all options open
for the final determination of child custody in this matter. The Court specifically
finds that there does not have to be any substantial change in circumstances before
custody could be changed.
When making a final determination as to child custody, at a hearing to be set
on a date certain in July, 1999, the Court will take into consideration the evidence of
what changes have taken place in the actions or inactions of each of the parents and
make its determination based on the guidelines set out in the Bah case, together with
the Court’s findings as to where the best interests of the child will be served.
Prior to the second hearing, Mother remarried. At that time, while Perrin was at Father’s
home, she moved out of her parents’ home into the home of her new husband. During the time
between the first and second hearings, Father remained in his parents’ home.
The second hearing was held on July 28 and 29, 1999. Father testified that after Mother
moved out of her parents’ home, she refused to tell Father her address or phone number or even the
fact that she had remarried. Mother would tell him only that she had sent the necessary information
to him in a letter. The letter he later received, however, contained only Mother’s new telephone
number and her post office box for mail; it did not include the physical address for her new home.
Father testified that he had been employed full-time as a design engineer at Plant Maintenance
Service Corporation near Memphis since October 1997, and was making approximately $30,000 per
year. He testified that he had continued to live with his parents because he thought it was required
under the trial court’s previous order, and that he paid his parents $250 per month in rent. He also
said that he had made progress toward paying the parties’ credit card debt. He testified that he had
enrolled Perrin in speech therapy and that he alone paid for it because Mother believed it was an
educational expense, not a medical expense. Father said that he had enrolled Perrin in kindergarten
at a private school, at his expense. Father complained that Mother had on occasion called Perrin by
“Joshua” or “Joshua Perrin,” in contravention of the trial court’s order. He expressed concern that
Mother said things to Perrin to undermine Father’s relationship with Perrin, and said that Perrin
would sometimes whisper to him over the telephone that he wanted to come home to Memphis.
Father asserted that Perrin was well-behaved at school. However, he admitted that the child had
“head-butted” his paternal grandmother, Mary Farien, so hard that he broke her nose.
On cross-examination, Father admitted that, at 27 years old, he had never lived outside his
parents’ home. He said that he began paying rent to his parents only after he obtained full-time
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employment at Plant Maintenance. Father testified that when he went to pick up Perrin after Perrin
had spent time at Mother’s home, he and his mother and father normally went “as a family.” He said
there had been occasions on which his mother and father drove Perrin, without Father. Father
acknowledged that the only time he had spent the night with Perrin without his parents, he had been
at the home of relatives of his parents. In response to Judge Chandler’s questions, Father said he had
never been away alone with Perrin for a weekend. Father testified that it was his intent to move out
of his parents’ home and get an apartment for he and Perrin. He did not know if there was an
apartment complex near his parents’ home that he could afford.
Mother testified at the second hearing as well. She said that she had obtained her license as
a licensed practical nurse, going to school full-time for fifteen months. Prior to becoming licensed,
she obtained a full-time position at a local medical center, working a variety of work schedules. At
the time of the hearing, she was employed full time from 7 a.m. to 3 p.m. as a charge nurse at the
Union County Nursing Home, making $11.34 per hour. Mother testified that she had remarried
approximately one year earlier, on July 25, 1998. She said that she and her new husband, Arthur
McKinnish, had taken a parenting class together. She testified that she mailed notice of her new
address and phone number to Father and Judge Chandler a little over a week after her marriage, on
August 3, 1998. (168) She testified about a heated conversation with Father on the phone in which
he demanded that she give him her new address and phone number. She refused, telling Father she
had sent him a letter with the information and saying, “you will demand nothing of me.” Mother
testified that she told Father her new phone number during this conversation. However,
unbeknownst to her, Father had recorded the phone conversation, and the tape indicated that she had
in fact not given Father the phone number. Mother then said that her recollection had been mistaken,
and admitted that she had refused to give Father her new phone number during that telephone
conversation. Mother acknowledged that the letter she sent to Father included her new telephone
number and post office box address for mail, but it did not include her new physical address.
Mother said that she did not disagree with Perrin receiving speech therapy, but believed
speech therapy was an educational expense because every public school that she had checked into
for Perrin offered speech therapy for free to children who needed it. She stated that Perrin would
receive speech therapy at his school in Georgia free of charge. Mother stated that she usually
referred to Perrin by his middle name, Perrin, and that she sometimes called him “Joshua Perrin,”
or “J.P..”
Mother testified about an incident in which Perrin was hospitalized for appendicitis while
he was with Father in Alabama, right before she was supposed to pick Perrin up at a pre-arranged
location. Mother testified that Perrin had been ill all weekend and had been in the hospital with
acute appendicitis since that morning. Mother said that Father did not call her and tell her about
Perrin’s condition. At approximately seven o’clock in the evening, about an hour before Mother was
to leave to pick up Perrin, Father’s aunt called her to tell her that Perrin was being taken into surgery.
Mother lives approximately three and a half hours from the hospital at which Perrin’s surgery took
place, so she arrived at the hospital after the surgery was over and Perrin was in a hospital room.
When she arrived, she said that Father told her she could not come there and “control the situation.”
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When she went into Perrin’s room, Mother testified, Mary Farien was angry and confrontational with
her in Perrin’s presence, telling her, “You don’t treat my son this way.” Mother testified that she had
to tell Mary Farien repeatedly to take it “out in the hall” because it was inappropriate to argue in
front of Perrin.
Mother also was concerned that Father and his parents were undermining her relationship
with Perrin. She said that Perrin sometimes told her, “We’re better than you,” referring to himself
and the Fariens as being better than Mother and her family. Mother also testified at length about her
concerns that Perrin was watching violent television shows and computer games at Father’s house,
and that this contributed to his unruly behavior, culminating in Mary Farien’s broken nose and
another incident in which Perrin jumped off of a bed onto Mike Farien and broke some of his ribs.
In addition to Mother and Father’s testimony, Judge Chandler also heard further testimony
from Mike and Mary Farien, Karen Cantrell (Perrin’s maternal grandmother), Arthur McKinnish
(Mother’s husband), Katherine Emslie (Mother’s aunt), and Dorothy June Charles (Mother’s friend).
Father’s expert, Dr. Fred A. Steinberg, testified that he had evaluated Father and his parents and had
interviewed persons who knew them, and found that Father possessed no characteristics that would
prevent him from being a good parent. Dr. Steinberg did not interview Mother or her family.
Judge Chandler also conferred privately with Perrin. At one point, Perrin said that he would
prefer to stay in Tennessee, but he also stated that he had fun in Georgia and that he loved his Mother
and stepfather. At another point, Perrin stated that his Father was better than his Mother, because
he had more games to play.
The trial court’s comments at the conclusion of the second hearing indicated that the issue
of custody remained difficult. Judge Chandler stated:
Let me say one thing, that I’m going to be judging this case in the end of it as
a case where this lady and this man are married and living in a home and in the
neighborhood and the place and location that they’re now living in, and I’ve heard
nothing really bad about it. And I’m going to judge it from this man’s standpoint as
if he had taken the child out and was living in an apartment for the first time
apparently ever on his own and with the help of parents who would stand ready to
help him should he need it. But that’s the two statuses that I’m going to look into,
because I’m not going to compare the home where he now lives with the home where
this group lives, the type of living conditions that he now has compared to what they
have. It will be as a person living out in an apartment in the Germantown area with
the income that he’s making and with the necessary plans that he’s making.
I think to do otherwise would be an injustice because, first of all, I don’t know
how long the family will be around. I’ve got to view him as now the new single
parent of this child in making a final decision about it. Even though he hasn’t moved,
he and the family have adamantly stated that they intend to move and move quickly.
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So that must, I believe, the manner in which I view his situation, so that will be the
way that I’ll be looking at it.
On February 18, 2000, the trial court entered an order granting full custody to Mother. The
trial court granted Father broad visitation rights, including eight weeks during the summer, one week
for spring break, one week for Christmas, and a weekend for Thanksgiving. In addition, Father was
ordered to pay child support of $419 per month, and Mother was ordered to pay for half of the speech
therapy Perrin received while in Father’s custody. From this order, Father now appeals.
On appeal, Father raises two issues. He argues that the trial court erred in awarding custody
to Mother because the evidence showed that he was better suited to raise Perrin. Secondly, Father
argues that the trial court erred by not applying the newly enacted child custody relocation statutes
because Perrin has lived in Memphis, Tennessee his entire life.
In child custody cases, appellate review is de novo upon the record, with a presumption of
correctness applied to the trial court’s factual findings. See Tenn. R. App. P. 13(d); Hass v.
Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Dalton v. Dalton, 858 S.W.2d 324, 327 (Tenn. Ct.
App. 1993).3
We first consider Father’s argument that the evidence preponderated against the trial court’s
finding that Mother was comparatively more fit to have custody of Perrin. Tennessee Code
Annotated § 36-6-101(a) requires that custody of children in divorce be determined "as the welfare
and interest of the child or children may demand." Tenn.Code Ann. § 36-6-101(a) (1) (Supp.2000).
In Bah v. Bah, 668 S.W.2d 663 (Tenn. Ct. App.1983), the Court set forth a common sense approach
to determining custody, the doctrine of "comparative fitness." The Bah Court noted that "[t]he
paramount concern in child custody cases is the welfare and best interest of the child." Bah, 668
S.W.2d at 666. See also Ruyle v.Ruyle, 928 S.W.2d 439, 441 (Tenn. Ct. App.1996); Koch v. Koch,
874 S.W.2d 571, 575 (Tenn. Ct. App. 1993). This determination depends on the facts of each case.
Koch, 874 S.W.2d at 575. Tennessee Code Annotated § 36-6-106 sets forth some of the factors to
be considered in performing a comparative fitness analysis. These factors include:
(1) The love, affection and emotional ties existing between the parents and child;
3
The parties agreed to refer this case to Judge Chandler for arbitration, and the initial order
of the trial court indicates that the parties agreed to accept his recommendations as binding. The trial
court stated that the “decision of the arbitrator shall be submitted to the Trial Court for incorporation
into a Final Decree of Divorce . . . .” However, the final order of the trial court granting custody to
Mother stated that the matter was heard by Judge Chandler, “special judge appointed by consent of
the parties.” In an arbitration case, the Court of Appeals reviews the decision of the trial court under
a “clearly erroneous” standard. See Arnold v. Morgan Keegan & Co., 914 S.W.2d 445, 449 (Tenn.
1996). The parties do not raise the issue of whether an arbitration standard of review should apply
in this case. Under either standard, the outcome of this appeal would remain the same.
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(2) The disposition of the parents to provide the child with food, clothing, medical
care, education and other necessary 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 preferences 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. § 36-6-106 (Supp.2000).
In addressing child custody, we recognize that “[c]ustody and visitation determinations often
hinge on subtle factors, including the parents’ demeanor and credibility during the divorce
proceedings themselves.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996). The trial
court is in a better position than this Court to observe the parties’ demeanor and determine their
credibility. See Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). “Since [child
custody] decisions often hinge on the parties’ credibility, appellate courts are reluctant to second-
guess trial judges who have observed the witnesses and assessed their credibility.” Adelsperger v.
Adelsperger, 970 S.W.2d 482, 485 (Tenn. Ct. App. 1997) (citing Gilliam v. Gilliam, 776 S.W.2d
81, 84 (Tenn. Ct. App. 1988)).
In this case, evaluation of most of the pertinent facts is highly dependent on the trial court’s
evaluation of the parties’ credibility and demeanor. Father and his witnesses testified that Mother
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was insensitive to Perrin and slow to attend to his medical needs. Mother explained her actions and
testified that she has no problem seeking medical help for Perrin; indeed, she is a licensed practical
nurse. Mother and her witnesses argued that Father is overly dependent on his parents and not
capable of caring for Perrin on his own. Father disputed this and testified that he is ready to care for
Perrin. It is undisputed that Mother remarried and moved without informing Father and overly
delayed giving Father her new telephone number and address and in even informing him of her
remarriage. It is undisputed that after Mother moved to Georgia, she began calling Perrin by his first
name, Joshua, despite the parties’ earlier understanding that the child would be called Perrin. The
proof was undisputed that Father failed to tell Mother of Perrin’s impending appendectomy until it
was underway, and Mary Farien was confrontational to Mother at the hospital in Perrin’s presence.
Both parties suspected the other of disparaging remarks to Perrin in order to undermine the other
parent’s relationship with him. Without a doubt, while both parties are loving parents, both have
significant drawbacks, and cooperation and communication between the parties has been minimal
at best. According appropriate deference to the trial court’s assessment of the parties’ credibility and
demeanor, we cannot conclude that the evidence preponderates against the award of custody to
Mother.
Father also argues on appeal that the trial court should have applied the child custody
relocation statute, Tennessee Code Annotated § 36-6-108. This statute is inapplicable to this case
because, by the time the hearing on custody was held, Mother was already living in Georgia. The
trial court had before it the question of whether Mother, living in Georgia, would have primary
custody, or whether Father, living in Tennessee, would have primary custody. The issue was not
whether Mother should be able to move with Perrin to Georgia. This issue is without merit.
The decision of the trial court is affirmed. Costs are taxed to the appellant, Shawn Patrick
Farien, and his surety, for which execution may issue if necessary.
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HOLLY KIRBY LILLARD, J.
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