Bryan v. Bryan
| Decision Date | 01 May 1981 |
| Citation | 620 S.W.2d 85 |
| Parties | James Kenneth BRYAN, Plaintiff-Appellant, v. Carolyn Anne Lane BRYAN, Deceased, Bruce and Opal Lane, and Carlos and Linda Taylor, Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
Oscar B. Hofstetter, Jr., Nashville, John B. Bond, Brownsville, for plaintiff-appellant.
Jere C. Gordon, Kenton, C. Thomas Hooper, III, Brownsville, for defendants-appellees.
The natural father of a four year old child sought custody of the child after the death of the natural mother to whom custody had been given in a divorce action. The Trial Judge awarded joint custody to the maternal grandparents and the deceased mother's sister and her husband.
The appellant and the deceased mother of the child were divorced in Brownsville, Tennessee on September 29th, 1975 when the child was five months old. The divorce decree awarded custody of the child to the mother and ordered the appellant to pay $200.00 per month as child support. Three days later the appellant married his present wife, the mother of two children, and they started a new life in Memphis where the appellant worked temporarily at the United States Post Office. In 1977, after seven months of unemployment, the appellant and his wife were hired as house parents for the Tennessee Baptist Children's Home in Franklin, Tennessee. Then in April of 1978 the appellant went to work at the Hermitage Branch of the First American National Bank of Nashville where he remains to the present time. He also serves as Minister of Music at a Baptist Church in Nashville and as a distributor for the Newspaper Printing Corporation of Nashville.
The appellant's ex-wife was killed in an automobile accident on July 26th, 1979. On July 31st, 1979, the appellant filed a petition seeking to have custody awarded to him, alleging that the child was in the custody of her maternal grandparents. The grandparents answered along with their daughter and son-in-law and sought joint custody of the child.
At the hearing the appellant admitted that after the divorce and until his ex-wife's death he made a conscious deliberate choice not to exercise his rights to visit with his daughter. It was, he thought, in her best interest to allow her to settle down to living with her mother free of the conflicts that would inevitably arise if she were uprooted periodically to visit with him. Consequently he saw the child only once after the divorce until the death of her mother. On that occasion he was surprised to find her at his parents' house on a holiday and he expressed to his father his disappointment over finding her there. After that time when the appellant visited his parents' home he always called first to make sure the child was not present.
Both sides offered other proof at the hearing relative to the condition in the respective homes. The Department of Public Welfare investigated the conditions in the respective homes. Their reports are in the record.
The Chancellor denied the appellant's petition for custody and awarded custody to the maternal grandparents and their daughter and son-in-law jointly. The appellant was given "reasonable" visitation rights during daylight hours only and was ordered to continue paying $200.00 per month in child support.
The appellant asserts that it was error for the Trial Court to refuse custody to him, the natural father.
There is and, we think, should be a preference for natural parents in child custody cases where nothing appears from the record against the natural parents having custody. This is the position our Supreme Court has taken in the case of Stubblefield, et al. v. State, ex rel., 171 Tenn. 580, 106 S.W.2d 558 (1936), where the Court said:
A parent who is of good character and a proper person to have the custody of the child and is reasonably able to provide for it ordinarily is entitled to the custody as against other persons and this rule applies although such others are much attached to the child and the child is attached to them, and prefers to remain with them, and they are in all respects suitable to have the custody of the child and able to support and care for it, or even though they are better able to afford the child material advantages.
This preference for natural parents, however, must, as all other considerations must, give way to the best interests of the minor child. In Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627 (1949), our Supreme Court said:
Under modern law it is universally held that the parent has no absolute right...
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