Understanding Tennessee's Child Custody Laws

When a couple with children decides to divorce, one of the greatest decisions to be made will center around child custody.

In Tennessee, the first thing one has to remember is the laws are designed to determine custody based on "the best interest of the child." This is a phrase that is used repeatedly in cases involving disputes over child custody.

It is preferred by the Court that parents reach an agreement in regards to child custody. At the time of filing for divorce, each parent is required to submit a proposed (or Temporary) parenting plan; which works as a first step in allowing for a amicable solution.

However, if the parents are unable to reach an agreement through this method, they next are required to attend mediation. In some cases, this will involved each parent, along with their attorneys, and a mediator to sit down and talk out the child custody issue; in others, it may be only the parents and a mediator (in these cases, the attorneys are usually available via telephone for any questions or concerns that may arise).

Trying to resolve the issue personally is the better option as mediators charge from $50 an hour to a flat fee of $400 which, unless otherwise ordered by the Court, is divided equally between the parties.

After the submission of parenting plans and mediation the couple is still unable to reach custody agreement, then the issue is taken before the Court. In Tennessee, there is an automatic presumption of joint custody with a Court, upon no agreement being reached, determining the Primary Residential Parent.

Sole custody, in Tennessee, is currently reserved only for extreme cases wherein it has been determined that one parent is unable to effectively co-parent with another, thus presenting a situation where one parent should be responsible for decisions as relates to the child.

Once a hearing date is set to determine custody, the Court will use the following factors to make a decision that fits "the best interests of the child":

1. Love, affection and emotional ties existing between the parents and child:This factor alone is usually credited to both parents. Exceptions may include where one parent has been absent (voluntarily) for months or years.
2. Disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver: Many believe that this factor implies that the parent who makes more money will automatically be granted custody; this is wrong. As long as a parent has the ability to meet the child needs, they will be credited with qualifying for this factor.

   In addition, there is a presumption that a stay-at-home-parent, with this factor, is automatically awarded custody. Again, this is in correct. While this factor allows for weight to be given to this fact, the other factors must also be used to determine if that particular parent would best serve "the best interest of the child."

3. Importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment:Courts love status quo, which is a Latin word meaning the state of things at present. This follows the philosophy of "if it ain't broke, don't fix it."

4. Stability of the family unit of the parents:This factor is taking into consideration each home and the family within. In cases of post-divorce modifications, this factor will consider stepparents, step-siblings, etc. Multiple divorces or separations for a parent can be considered negatively where this factor is concerned.
5. Mental and physical health of the parents: Alcoholism, drug abuse, an untreated history of depression, and other similar ailments can be detrimental to one being awarded custody. However, being physically disabled, unless severe to the point of the parent needing their own caretaker, will not likely be viewed negatively.
6. Home, school, and community record of the child: Is the child doing well in school? If not, which parent has done what to improve the child's education? Is the child frequently in trouble with school officials or law enforcement? Does the child not function well with a new stepparent or step-siblings?

   These are all contributors to this factor and are taken into consideration to determine custody.

7. The reasonable preference of the child if 12 years of age or older: This is a factor that is only taken into consideration, not an actual determinant. A child is allowed to express their preference, but that does not mean it will be granted.

   For post-divorce modifications, the child's preference is not considered a change of circumstances to allow for modification of custodial arrangements.

8. Physical or emotional abuse to the child, to the other parent or to any other person: Proven abuse (emotional, mental, physical) by a custodial parent to the child or others in the home can be grounds for not granting custody to the abusive parent.
9. Character and behavior of any other person who resides in or frequents the home of a parent: Basically, if you are allowing a person (or people) of low character to live in or frequently visit your home, "the best interest of the child" is to not be subject to this individual(s) and can result in custody not being awarded to the one hanging out with such a loser.

10. Each parent's past and potential for future performance of parenting responsibilities: This one is pretty simple....if you haven't visited, or at least tried to, the children during the separation or following the divorce, you've not shown a potential to parent in the future. If suddenly you've got a new girlfriend who wants to play house with your kids but you haven't seen them in several years, don't even waste your money filing for custody (this is all too often a common occurence) because, well, your history says that, once the girlfriend's gone, so will you be.

As I stated before, Tennessee has an automatic presumption of joint legal custody; meaning, specifically, that both parents share in major decisions as relates to the child.

Most often, Joint Legal Custody is awarded and the above factors are used to determine the Primary Residential Parent (formerly known as Custodial Parent). This is the parent the child will live with a majority of the time and, in most cases, the one who will receive child support from the Alternative Residential Parent (formerly known as Noncustodial parent).

To date, there is no presumption of the ever increasing division referred to as 50/50 or Split Parenting, where a child resides each parent, on a determined schedule, for half of the time. Both parents must agree to this and meet the judge's approval before such a division can be made part of an Order.

Once the Primary Residential Parent (PRP) is determined, unless the parents are agreement as to a visitation schedule for the Alternative Residential Parent (ARP), then standard visitation, as a general rule, is awarded. Standard visitation consist of every other weekend, half of all holidays, and extended summer visitation (generally 2 to 3 weeks).

In the event that distance between the parents prevents standard visitation, the Court will usually enter a long distance parenting plan that eliminates every other weekend, yet offers longer parenting times during extended school breaks.

If evidence shows that there is unwillingness on one parent's part to co-parent with another, then Sole Legal Custody may be awarded to the other parent, which gives them the right to exclusively make decisions as relates to the child. Usually, however, standard visitation or a long distance plan is still awarded provided that there are no extreme circumstances that would prevent it from being otherwise.

Child custody is one of the toughest things about divorce; whether the decisions are being made during the divorce or issues arise post-divorce. Each parent must be willing and able to put aside their own personal feelings and decide, just as the Court would, what is in "the best interest of the child."

The foregoing is intended to be used as a resource and not a substitution for legal counsel. If you are involved in a matter of child custody, you should seek the services of a qualified professional. Visit the Tennessee Bar Association website to find a competent attorney in your area.