Child Thriving Despite Mom’s Irrational Behavior So No Change of Custody.

Tennessee law case summary on custody modification in divorce and family law from the Court of Appeals.

Frederick and Margaret Zahn were divorced in Williamson County, Tennessee, in 2007. They had one son, and they agreed to a permanent parenting plan naming the mother the primary residential parent and awarding her 265 days of parenting time per year. The father was awarded 100 days of parenting time every other weekend, once a week, and summer and holidays.

In 2012, the father moved to modify the parenting plan. He also asked that the mother be held in civil contempt. He alleged that there had been a change of circumstances because the son was missing school because the mother overslept. He also alleged that the mother had instructed the son to lie about missing school.

He also alleged irrational and unreasonable behavior such as assaulting him, and threatening to slash the tires on his car. At a cub scout meeting, she allegedly referred to the husband’s new wife as a “slut.”

The trial court first entered an agreed restraining order against both parties, and then held a hearing at which both parents testified. At the conclusion of the hearing, the trial court questioned the mother’s credibility. The trial judge ultimately held that there had been a change of circumstances, but that a change of custody was not warranted. Despite the problems, the trial court noted that the child was thriving, even though this was “remarkable” given the circumstances. Therefore, the judge was reluctant to disturb the current plan. The judge did warn the mother, however, that it wouldn’t last, and that unless she changed how she did business with the father, “sooner or later your child won’t be thriving,” and that a change would be warranted.

Despite the stern warning to the mother, the trial court concluded that a change of custody was not warranted, not being in the best interest of the child. The father then appealed to the Tennessee Court of Appeals.

The appeals court first noted that it would review the case de novo, but with a presumption of correctness. It then carefully reviewed the evidence to determine whether the evidence preponderated against the trial court’s findings. It held that it did not. It reviewed the statutory factors, and held that the lower court had given all of them the appropriate weight.

For these reasons, the Court of Appeals affirmed the lower court’s ruling.

No. M2014-00441-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2015).

See original opinion for exact language. Legal citations omitted.

To learn more, see Modifying Custody & Parenting Plans in Tennessee After Divorce. See also Miles Mason’s book available on Amazon.com Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases.