APPELLATE COURT OPINIONS

We granted this appeal to address the propriety of a trial court's award of child support to a parent who is not the primary residential parent. We hold that the Child Support Guidelines require that child support may be awarded only to the primary residential parent under the parenting plan approved by the trial court. We further hold that the use of a comparative analysis of the parties' earnings is improper under the Child Support Guidelines. We therefore reverse the trial court's judgment, reverse the judgment of the Court of Appeals, and remand this case to the trial court for consideration of an award of child support to the primary residential parent, David Wayne Gray.

James Henderson Dellinger and Gary Wayne Sutton were convicted of first degree premeditated murder in the death of Tommy Mayford Griffin. Dellinger and Sutton were both sentenced to death, and the Court of Criminal Appeals affirmed their convictions and sentences. We entered an order designating the following issues for oral argument:1 1) whether the indictments violate the United States Constitution as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000); 2) whether the trial court erred in refusing to grant the defendants a severance or to grant separate juries for each defendant; 3) whether the trial court erred in dismissing the jury selection expert previously granted the defendants; 4) whether the trial court erred in refusing to suppress evidence seized from Dellinger’s residence under a search warrant; 5) whether the evidence supports the jury’s finding of aggravating circumstance (i)(2); 6) whether the trial court erred in failing to instruct the jury at sentencing that the identity of the defendants in prior convictions must be proven beyond a reasonable doubt; 7) whether the trial court erred in refusing to charge the jury as a mitigating factor that the defendants are human beings; 8) whether the trial court erred in refusing to answer the jury’s question about the manner of serving life sentences; and 9) whether the sentences of death are excessive or disproportionate under Tenn. Code Ann. § 39-13-206(c)(1)(D). Having carefully reviewed these issues and the remainder of the issues raised by Dellinger and Sutton, we find no merit to their arguments.2 Accordingly, we affirm the Court of Criminal Appeals in all respects.

I fully agree with the majority’s conclusion 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 natural parent’s voluntary relinquishment of custody to the non-parent. I also agree with the majority’s conclusion that, in such circumstances, a natural parent seeking to modify custody must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. I disagree, however, with the majority’s conclusion that Blair has failed to show a material change of circumstances in this case. The factors in the record supporting this conclusion are succinctly summarized in Justice Birch’s dissenting opinion as follows: When Blair originally agreed to surrender custody of Joy to Badenhope, his relationship with his daughter was uncertain and had only begun. Indeed, he apparently did not even see Joy until after her mother’s death. But in the many years that have passed since that time, Blair has expended great effort to create a strong, loving bond with his daughter. That bond has flourished to such a degree that Joy now has expressed an interest in living with Blair. Additionally, Blair has moved to Tennessee to be nearer to Joy, [footnote omitted] and he has purchased a new home in a neighborhood where Joy has many friends. Blair’s relationship with his daughter, his daughter’s interest in living with him, and even his place of residence have changed entirely.

With today’s holding, the majority declares, essentially, that a parent who voluntarily surrenders custody of a child forfeits any right to custody and  from that day forward is shorn of parental status and relegated to a status no better than that of a non-parent, should the parent petition to modify the custody decree. I cannot agree. In my view, this decision condescendingly brushes aside the fundamental and constitutionally-grounded principle  that a parent has a right to raise a child without undue governmental  interference. Likewise, the holding disregards the presumption, widely recognized in law, that a child’s best interests are served most effectively,  where possible, by placement with a fit parent. The majority’s holding places far too little weight on the parent’s fitness to care for the child or the parent’s efforts, no matter how extensive or admirable, to foster and nurture a loving bond with the child. Moreover, my views aside, the majority misapplies its own analysis to reach a result I find to be unsupportable and unjust. For these reasons, I respectfully dissent.

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.

We granted review to determine whether a “seizure” within the meaning of the Fourth Amendment to the United States Constitution and article I, § 7 of the Tennessee Constitution occurs when a police officer activates the blue lights on his patrol car and orders a person to stop, but the person flees and does not submit to authority. The trial court suppressed evidence obtained from the defendant after determining that the officer lacked reasonable suspicion, supported by specific and articulable facts, that the defendant had committed a crime before seizing the defendant by activating his blue lights and ordering him to stop. The Court of Criminal Appeals concluded that there was no seizure because the defendant fled and did not yield to the officer’s show of authority and reversed the judgment.

After a thorough review of the record and the relevant authority, we hold that under the circumstances of this case, the defendant was seized when the officer activated the blue lights on his patrol car, ordered the defendant to stop, and pursued him for several blocks. Because the officer lacked reasonable suspicion or probable cause to effect such a seizure, the evidence seized from the defendant was properly suppressed by the trial court. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

Ralph Dewayne Moore was indicted and tried on one count of disorderly conduct and two counts of aggravated assault. The jury was instructed that misdemeanor assault and felony reckless endangerment were lesser-included offenses of aggravated assault. Moore was subsequently convicted of disorderly conduct, one count of misdemeanor assault, and one count of felony reckless endangerment. The conviction was affirmed by the Court of Criminal Appeals. On appeal to this Court, Moore contends that: (1) felony reckless endangerment is not a lesser-included offense of aggravated assault; and (2) the evidence presented at trial is insufficient to support the conviction for felony reckless endangerment. We conclude that the offense of felony reckless endangerment is not included within the offense of aggravated assault committed by intentionally or knowingly causing another to reasonably fear imminent bodily injury by use or display of a deadly weapon; thus, we hold that the jury was improperly instructed. As a result of our holding, we find it unnecessary to address Moore's second contention. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to the trial court.

I concur with the majority’s opinion affirming the convictions as to both defendants. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.

In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed.