Child Custody in Tennessee Divorce Law

Written by divorce and family lawyers with the Crone & Mason, plc Family Law Practice Group, our attorneys provide details of Tennessee divorce and other family law issues including answers to many frequently asked questions. Offices serving Nashville and Memphis Tennessee and surrounding area. Copyright, Crone & Mason, plc, 2007.

Frequently Asked Questions

1.In deciding custody, what standard does the court take into account?

"Best interest" of the child. The court looks at the evidence presented, listens to the parties seeking custody, and considers a number of different factors in order to decide the "relative fitness of the parties," which means the better parent for the child.

2.What factors are considered in awarding custody?

• The love, affection and emotional ties existing between the parents and child;
• The 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;
• The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
• The stability of the family unit of the parents;
• The mental and physical health of the parents;
• The home, school and community record of the child;
• The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
• Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
• The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child; and,
• Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
The very nature of custody disputes is such that each case is different and unique. The courts and the law recognize this. No one factor controls, and each factor must be weighed and considered in relation to the others.

3.Is the mother more likely to get custody?

More often than not, yes, but not always for the reasons one might expect. Even though the law does not allow discrimination against the father because of gender, if the children are younger, the mother is generally awarded custody. One reason may be that, in most situations, the mother may have more time to devote to the child than a father employed in a demanding profession. Another reason may be that the mother may have more experience. Keep in mind, however, that there are many exceptions for many reasons. For one couple from Germantown, Tennessee, the father had fulfilled the traditional primary care giving role prior to the divorce and received full custody after a trial. In most cases, it is the role performed prior to the divorce, not the gender that creates this situation.

4.What about with older kids - say, teenagers?

The father has a greater opportunity for custody, especially with teenage boys. The amount of time the parent has available and actually spent in the past with any child are very important.

5.Must a mother be declared unfit before a father will be awarded custody?

No. Discrimination based on gender is prohibited by the Tennessee and U. S. Constitutions.

6.Does the child have any say in the choice of custodial parent?

If the child is over twelve (12) years old, the court will hear and consider the child's wishes. If the child is under twelve (12) years old, the court can choose to hear and consider the child's wishes. The older the child, the stronger his or her wishes will be considered. Beware that courts do not look favorably upon a child being coerced or coached. Courts realize that involving a child in such a difficult situation, such as choosing between parents, could cause long-lasting feelings of guilt, which might seriously harm the child.

7.How important is the status quo in a court's custody decision?

Very, especially where a child seems to be well adjusted. Courts are less likely to disrupt an acceptable situation in favor of the unknown. All things being equal, maintaining stability is very important.

8.Are siblings always kept together?

Courts want to keep siblings together. In order to split siblings, there must be a compelling, reasonable, and practical reason. Even if the divorcing parents agree to split siblings, the court may reject the proposed arrangement.

9.What impact does a parent's new spouse, live-in companion, or other person sharing
   the home have on a custody decision?

In a post-divorce situation, the court must find a material change of circumstances to change custody. A remarriage is not necessarily a change of circumstances, but it can be if the child is affected. In those situations where another person will come in contact with or influence the child by reason of a remarriage or similar changes in the child's or parent's living situation, and there is a basis for concern about the stability of the child's environment, the mental condition and character of that other person are relevant in an initial custody or modification proceeding.

10.Will spousal abuse affect custody?

Allegations of abuse are relevant, but not controlling. Where abuse is shown to have affected the children, the court will consider this along with other factors. Courts look at abuse allegations closely for obvious reasons. If a court believes a spouse has made a false accusation of abuse to gain advantage, the consequences will be serious.

11.What are the rights of a custodial parent?

A custodial parent has final decision-making authority over all aspects of a child's life, including but not limited to education, health care, and religious training. Custodial powers are not, however, absolute. A non-custodial parent can initiate court proceedings to contest the custodial parent's decision on the grounds that the action to be taken is not in the best interest of the child. Courts, though, will rarely overrule a custodial parent's decision unless it will endanger the child.

12.What are the rights of a non-custodial parent?

In addition to visitation and other rights, as negotiated between the parties, the non-custodial parent has the following rights:
• The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations;
• The right to send mail to the child which the other parent shall not open or censor;
• The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any event of hospitalization, major illness or death of the child;
• The right to receive directly from the child's school, upon written request containing a current mailing address and upon payment of reasonable duplication costs, copies of the child's report cards, attendance records, names of teachers, class schedules, standardized test scores and any other records customarily made available to parents;
• The right to receive copies of the child's medical records directly from the child's doctor or other health care provider upon written request containing a current mailing address and upon payment of reasonable duplication costs; and
• The right to be free of unwarranted derogatory remarks made about such parent or such parent's family by the other parent to or in the presence of the child.
The rights above also apply to the custodial parent when the child is spending time with the non-custodial parent.

13.If a custodial parent wants to move out of state with the child, will this be permitted?

Yes, if the move is not motivated by vindictiveness and is in the best interest of the child. However, a new law requires timely notice be given. Consulting a family law attorney well in advance of moving is advised. A parent seeking to prevent the move may petition for a change of custody.

14.May a parent remove the child from Tennessee temporarily, such as for vacation?

Before a minor child is temporarily removed from Tennessee, the parent responsible for the removal must inform the other parent of the address and telephone number where the child may be reached during the period of temporary removal. It is always advisable to be up front in these situations.

15.Once custody has been awarded, under what circumstances may it be modified?

First, there must be a material change of circumstance. Second, the modification must be in the best interest of the child. Tennessee appellate courts have developed a rather lengthy list of possible changes in circumstance. For a court to find a change of circumstance, the ultimate test is whether or not the child is doing poorly in an important aspect of life, such as school performance. Unless there is something objectively wrong with the child, a court is unlikely to change custody.

16.What if the child decides he or she wants to live with the other parent?

The child's preference for a change of custody will not, by itself, constitute a sufficient cause for modification. Even if a child's feelings are very strong, they will be just one factor. Obviously if the child is older, the court will give more weight to the child's preference. The court may well question the child's motive or inquire as to whether inducements have been made by the newly desired parent. Also, a court will not look favorably at either parent allowing a child, especially a teenager, to use this leverage to gain an advantage or avoid discipline at the more strict parent's home.

17.Does the court prevent custody modification within a short period of time after a
   custody judgment?

Generally yes, unless there is a very, very good reason.

18.What effect does child abuse or neglect have on custody?

Any serious mistreatment or violence constitutes a change of circumstance sufficient for a custody modification. A court will distinguish abuse from a strict approach to discipline and will require evidence corroborating an allegation. Also, a guardian ad litem, attorney ad litem, or other trained professional will likely be assigned to investigate the charges and report to the court.

19.Will a custodial parent's misconduct lead to custody modification?

It depends. A moral indiscretion or legal problem alone is not grounds for a change of custody if the child is leading a normal and well-adjusted life. The effect on the child will be the key issue. If the child is unaware of the mistake or error in judgment, this will be a major factor. Most judges prefer that a custodial parent not live with his or her lover in the presence of the child or allow an unmarried romantic friend spend the night. However, the remedy may be to first order a restriction of the improper conduct and change custody only upon repeated violation of the order. In any event, the court will consider the circumstances and look for objective manifestations of harm. If there are none, custody will likely not be changed unless the improper conduct is especially egregious.

20.Will the relative affluence of the parents affect the custody decision?

While wealth may only be one factor, a wealthy parent may be perceived as able to offer a better education and opportunities. As anyone would expect, however, the more devoted parent who sacrifices and makes time for a child will almost always prevail over a wealthy parent who values a career over the child.

21.How does joint custody work?

Currently in Tennessee, "joint custody" is a term that can have more than one meaning. In a true joint custody situation, parents will share the final decision-making authority. If one parent is ordered the "primary custodial parent," that parent has final decision-making authority, and the child will reside with that parent most of the time. Visitation can be a separate issue from custody. Some judges will require the parties to spell out in detail what is meant by these terms in order to eliminate arguments later about what they mean in a particular situation. That being said, courts perceive that, in any "joint custody" situation, important decisions will involve consultation between both parents.

22.If both parents share custody, does that mean no one pays child support?

No. The only way child support will not be ordered is if the child resides with each parent a roughly equal amount of time.

23.Can I stop my spouse from seeing the children if I don't get my child support
   payments?

No. Visitation will not be prevented unless a court order says so. Failure to pay child support is not grounds for termination of visitation rights. To collect child support, there are other collection options, such as filing a petition for contempt seeking to put the non-paying parent in jail.

24.Can I stop paying child support if my spouse won't let me see the children?

No. Proper enforcement of visitation rights begins with filing a petition. Persistent violation of a court-ordered right to visitation can be grounds for a change of custody.

25.What's the difference between joint legal custody and sole legal custody?

True "joint legal custody" means that both parents must agree on all important decisions. If they cannot agree, the court or an arbitrator can decide for them. Courts prefer not to be placed in the position of making decisions for parents and will attempt to find alternative decision-making mechanisms. If the parents cannot agree, some judges see this as a good reason to modify custody and place final decision-making authority with only one of the parents (or even a foster parent if the situation is bad enough). The parent who is ordered the "sole legal custodial parent" has final decision-making authority.

26.If I am considering entering into a custody battle situation, what else should I know?

There are only a few things in life more difficult or more expensive than custody battles. Be sure that you want custody for the right reasons. Examples of wrong reasons include the need for child support, unwillingness to pay child support, fear of societal judgment, and anger. You will need to be able to prove the child will live a better life with you. This means evidence. Plan ahead and discuss this with your attorney. Also, there are many good books and parenting magazines available at any serious bookstore. Read them.

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