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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
September 20, 2006 Session IN RE MIKAYLA GRACE CLARK SAMUEL KENT CLARK v. LEAH JOY CERDEN
An Appeal from the Juvenile Court for Madison County No. 34-0261 Christy R. Little, Judge

No. W2005-01687-COA-R3-JV - Filed January 22, 2007

This is a child custody dispute. The biological parents of the child involved in this action met in Georgia, where the child was born in December 2002. The parties lived together with the child, but never married. Initially, the parties moved several times with the child, following job opportunities for the father. When the child was about nine months old, the parties moved to Jackson, Tennessee. Not long after that, the mother and the child returned to Georgia to live with the mother's parents in Georgia, in order for the mother to seek professional help for depression. About nine months later, after an altercation between the mother and the child's maternal grandmother, the mother told the father that she could not care for the child and asked him to assume custody. Accordingly, the father took the child to live with him in Jackson. About two months later, the father filed the instant petition for legitimation of the child and to seek custody. The mother opposed the father's petition and filed a counter-petition for custody. After a hearing, the trial court determined that the father was comparatively more fit than the mother and designated him as the primary residential parent. The mother now appeals. We affirm, finding that the evidence does not preponderate against the trial court's determination. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is Affirmed HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S., and DAVID R. FARMER , J., joined. Sam J. Watridge, Humboldt, Tennessee, for the appellant, Leah Joy Cerden. Harold F. Johnson, Jackson, Tennessee, for the appellee, Samuel Kent Clark.

OPINION The parents of the child involved in this action are Petitioner/Appellee Samuel Kent Clark ("Father") and Respondent/Appellant Leah Joy Cerden ("Mother"). They met while Father was attending chiropractic school in Georgia. At the time, Father was thirty-four years old, and Mother was twenty-three years old and living with her parents in a town near Atlanta, Georgia. On December 7, 2002, Mikayla Grace Clark ("Mikayla" or "the child"), the child involved in this action, was born. When Mikayla was born, Mother and Father were both living with Mother's parents in Georgia. After their daughter was born, problems developed in the parties' relationship. Within a nine-month period, the parties moved several times. When Mikayla was about one week old, Father, Mother, and Mikayla moved to Kentucky to live with Father's parents. Soon thereafter, they moved to Alabama, then back to Kentucky, and then to Jackson, Tennessee. Within weeks after the move to Jackson, Mother moved with Mikayla to her parents' home in Georgia, and Father visited them frequently on weekends. Unfortunately, Mother and her mother, Charlene Cerden ("Grandmother"), had a volatile relationship. On Father's last visit to Georgia on Easter weekend, approximately April 11, 2004, an altercation erupted between Mother and Grandmother. When Father entered Mother's parents' home just after the altercation, he found Mother in the kitchen holding the child. Mother was on the floor crying and asked Father to take Mikayla temporarily to live with him in Jackson. Father complied with her request and took the child to live with him. While Father had custody, Mother visited Father and Mikayla in Jackson. Meanwhile, the relationship between Father and Mother continued to deteriorate. In December 2003 and February 2004, Father asked Mother to marry him, but she declined. Father told Mother that he would not close the door on their relationship, but that he intended to move forward with his life. At some point, Father began to date other women. On May 29, 2004, Mother appeared at Father's apartment door in Jackson and told him that she intended to live in Jackson. Father was not pleased. For about two weeks, Mother lived with Father and Mikayla. After that, she signed a one-year lease for an apartment near Father's home. When Mother moved out of Father's home in June 2004, Mikayla remained with Father. Meanwhile, on June 1, 2004, Father filed a petition in Georgia state court for legitimation of Mikayla, to establish visitation rights and child support obligations, and to modify custody. On June 24, 2004, Father filed a petition in the Tennessee juvenile court below that was similar to the petition filed in Georgia. The petition filed in the Tennessee trial court acknowledged that a similar petition had been filed in Georgia, but averred that the Georgia petition would be dismissed when the Tennessee trial court accepted jurisdiction over the child. The Georgia petition stated that Mother resided with the child in Georgia, but the petition filed in the Tennessee trial court stated that Mother and Mikayla lived in Jackson, Tennessee. Based on Father's petition, the Tennessee trial court issued a temporary injunction, restraining Mother from removing the child from the county -2-

other than for visits with her parents in Georgia. On June 25, 2004, the Georgia petition was voluntarily dismissed. On June 27, 2004, after the Georgia petition was dismissed, Mother filed in the Tennessee trial court below an answer and counter-petition asking to be designated as primary residential parent. In her counter-petition, Mother averred that she "is not certain this Court has jurisdiction of the Respondent and requests the Court to review the requirements prior to adjudicating the case." On August 3, 2004, the trial court entered an agreed order establishing the parties' respective parenting time pending resolution of the litigation. Under the order, Father remained the primary residential parent and Mother was given a set visitation schedule. On November 2, 2004, Mother filed a motion to dismiss for lack of jurisdiction. Mother argued that she resided and was domiciled in Georgia, and that the child was also a legal resident of Georgia. She said that she was temporarily residing in Tennessee only because Father had taken the child to Tennessee. She conceded that the Tennessee trial court had subject matter jurisdiction, but claimed that it did not have personal jurisdiction over either her or Mikayla pursuant to Tennessee Code Annotated

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