TN Dad Loses Custody on Appeal Because No Changed Circumstances Proven
Tennessee law case summary on seeking to change primary residential parent and family law from the Court of Appeals.
Kristi Leanne Cosner vs. Charles Arthur Cosner — Tennessee child custody modification
The case of Kristi Leanne Cosner vs. Charles Arthur Cosner turned into an empty trial victory for the Father when his request to modify custody was granted at the trial level, and then reversed and dismissed on appeal. The outcome of more than two years of litigation was to put the Parents back to the custody status at the time of their divorce without any change in the Children’s primary residence or parenting schedule.
The Mother and Father were divorced in 2005, and the terms of the divorce included a Permanent Parenting Plan for their two children. The Mother was designated the primary residential parent. The Father accepted a specific parenting time schedule.
A year later, the Mother filed a child support enforcement proceeding against the Father, to which the Father filed an answer and a counter-petition for modification of custody. His cross-petition was based largely upon intentional interference in his visitation with the Children. Other of the Father’s allegations included inappropriate sexual conduct in the household, the Mother’s pregnancy with a child of a married man, and the Mother’s outbursts of anger against the Father in the presence of the Children.
The court proceedings involved considerable difficulty between the Mother and her own attorney, who sought to withdraw from representation of her at the time of trial. On the day of trial, neither the Mother nor her attorney was present. The Father proceeded with his case.
Unfortunately for the Father, the one witness he called did not support his allegations against the Mother. The witness was a licensed clinical social worker, providing counseling for the Parties’ daughter for approximately 9-months. The social worker’s testimony revolved around the daughter being uncomfortable with the Father’s new wife. The social worker said the daughter “didn’t speak very much about her mother’s home at all.”
The Father did not present any evidence about the Children’s health, schooling, welfare, or general well-being while with the Mother or otherwise, and it was noted in the appellate decision that the son was barely mentioned in the entire record.
While the trial court ruled in favor of the Father, the Court of Appeals reversed, saying that the Father’s trial presentation did not rise to the “drastic remedy” of changing custody. In particular, the appellate decision criticized the trial court’s decision to restrict even the Mother’s visitation until she moved out from her cohabitation with the married man, particularly considering that she “raised them from birth.”
The Court of Appeals clearly set forth its approach to custody modification as being two parts: (1) whether there was a sufficient change of circumstances; and, (2) whether the change of custody would be in the children’s best interests.
To analyze the first question, whether there was a sufficient change of circumstances, the Court of Appeals set forth three questions, or, sub-topics: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered; and, (3) the change is one that affects the child’s well-being in a meaningful way.
When the Court of Appeals applied this framework to the Cosner case, as presented at trial, it found that the Father failed to demonstrate that any change in the Children’s situation had affected their well-being in a meaningful way.
No. E2007-02031-COA-R3-CV (Tenn. Ct. App. June 19, 2008).
See original opinion for exact language. Legal citations omitted.
For more information about changing custody, see How to Change Custody in Tennessee.
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