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IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
September 6, 2001 Session ARTHUR BLAIR v. MARILYN BADENHOPE
Appeal by Permission from the Court of Appeals, Eastern Section Chancery Court for Greene County No. 93-101 Hon. Thomas R. Frierson, II, Chancellor

No. E1999-02748-SC-R11-CV - Filed May 3, 2002

This case addresses the applicable standard to modify a child-custody order awarding custody to a non-parent. In 1993, the child's natural father agreed to give custody to the child's maternal grandmother, and a consent order was entered accordingly. The father later petitioned to modify that order, asserting that a material change in circumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that no material change in circumstances had occurred warranting modification, and a majority of the Court of Appeals affirmed. We granted the father's application for permission to appeal and hold that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the parent's voluntary consent to give custody to the non-parent. Instead, a natural parent seeking to modify a custody order that grants custody to a non-parent must show that a material change in circumstances has occurred, which makes a change in custody in the child's best interests. We also affirm the judgment of the Court of Appeals finding that the father has not shown a material change in circumstances that makes a change of custody in his daughter's best interests. Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Appeals Affirmed WILLIAM M. BARKER , J., delivered the opinion of the court, in which E. RILEY ANDERSON and JANICE M. HOLDER , JJ., joined. FRANK F. DROWOTA , III, C.J., filed a concurring-dissenting opinion, and ADOLPHO A. BIRCH, JR., J., filed a dissenting opinion. Edward Kershaw, Greeneville, Tennessee, for the appellant, Arthur Blair. John T. Milburn Rogers, Greeneville, Tennessee, for the appellee, Marilyn Badenhope. OPINION

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FACTUAL BACKGROUND In November 1989, Susan Badenhope gave birth to her daughter, Joy. She was unmarried at the time of Joy's birth, and Joy's father, Mr. Arthur Blair, initially denied paternity. Unfortunately, Susan Badenhope soon became ill with terminal cancer, and she passed away in October 1990. During the length of her illness, she and her daughter were cared for by Ms. Marilyn Badenhope, Joy's grandmother. After her mother's death, Joy went to live with her grandmother. In December 1990, Ms. Badenhope filed a petition seeking custody of Joy, and the court granted her temporary custody later that month.1 Mr. Blair was permitted to contest the action after establishing his paternity through a blood test, and the court held a hearing on the custody petition in April 1992. Although the parties presented witnesses at this hearing, they settled the case before submitting it to the court, agreeing that Ms. Badenhope should have lawful custody of Joy. This consent order, which also gave Mr. Blair specified visitation rights, was accepted by the court, and on March 16, 1993, Ms. Badenhope was granted custody of Joy. About one month later, Mr. Blair petitioned the Greene County Chancery Court to modify the custody order and award him custody of Joy. Sometime before the March 1993 order, he married and moved to Greene County to be closer to Joy. However, the chancery court found that these facts alone did not constitute a material change in circumstances warranting a modification of custody, and on June 30, 1995, the court denied his petition to modify the custody order. This decision was affirmed by the Court of Appeals in October 1996. See Blair v. Badenhope, 940 S.W.2d 575 (Tenn. Ct. App. 1996), perm. to appeal denied, March 17, 1997. In July 1997, Mr. Blair again petitioned to gain custody of his daughter. In this petition, Mr. Blair alleged that a material change in circumstances had occurred primarily due to the strengthening of his relationship with Joy. Mr. Blair also asserted that he, as Joy's natural father, enjoys a presumption of superior parental rights against any non-parent seeking or retaining custody of his children and that he cannot be denied custody of his daughter unless he is shown to be an unfit parent. On August 30-31, 1999, the trial court held a hearing on the petition, limiting the scope of its inquiry to facts arising between the denial of the first petition and the filing of Mr. Blair's second petition. Mr. Blair introduced evidence showing that, since 1995, he and his wife had purchased a new home in a subdivision that has other children who are close to Joy's age. He also testified that he has developed a stronger relationship with Joy since 1995--a fact confirmed by Joy herself--and that Joy has expressed an interest in living with him permanently. With regard to his employment,
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Although herself a resident of Tennessee, Ms. Badenhop e filed this petition in Mecklenburg County , North Carolina, because both Joy and Joy 's father w ere residen ts of that state. The parties agree that the North Carolina court properly asserted jurisd iction over the petition, and they raise no dispute as to the validity of the court's subsequent award of custody.

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Mr. Blair testified that he works up to sixty-five hours a week and that he frequently travels out of town. Nevertheless, he testified that he telephones Joy on a daily basis and that he changes his work schedule to be home during Joy's scheduled visitation. Finally, Mr. Blair's wife testified that Joy asked to be adopted by her. Ms. Badenhope testified that she retired in 1995 as a registered nurse from the Veteran's Administration. She is frequently involved in the activities of Joy's school, serving as homeroom mother, accompanying Joy's class on field trips, and participating in the school's hot lunch program. Ms. Badenhope also keeps Joy involved in several church and other community activities. In addition, the record shows that Ms. Badenhope has willingly encouraged a relationship between Joy and her father, though she apparently limited the phone calls from the Blairs because of their alleged persistence in encouraging Joy to live with them. As the parties have conceded, Joy is an "outstanding, well-adjusted[,] happy, wonderful child." The record indicates that Joy has a good academic record and that she received all "A's" during the 1996-97 school year. Joy also testified that she enjoys spending time with her father and that she has many friends in her father's new neighborhood. After considering the evidence, the trial court denied Mr. Blair's petition to modify custody. The court acknowledged that Mr. Blair was a fit parent and that his relationship with Joy had grown stronger since 1995. However, the court found that these considerations did not amount to a material change in circumstances warranting a change in custody. The trial court further found that Joy would be harmed if custody were returned to Mr. Blair. Finding that Mrs. Blair pursued an extended extramarital relationship that ended in 1997, the court found that the Blairs' home environment was not stable. Conversely, the court found that the environment provided by Ms. Badenhope was "stable and secure" and was one in which Ms. Badenhope and Joy enjoyed a loving relationship. Consequently, upon considering the totality of the circumstances, the trial court concluded that awarding custody to Mr. Blair would result in substantial harm to Joy. Mr. Blair appealed to the Court of Appeals, and a majority of that court affirmed the trial court's decision. Citing this Court's decision in In re Askew, 993 S.W.2d 1 (Tenn. 1999), the intermediate court first acknowledged that parents have a fundamental right to the care and custody of their children. The court then applied a two-pronged test to determine whether a natural parent should prevail in a custody modification dispute vis-

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