But, who gets the kids....? TN Child Custody

June 26, 2019

In Tennessee, all divorcing parents will enter into something called a Permanent Parenting Plan to lay out the basic outline parents will follow when co-parenting.  The plan allocates each parent’s specific rights and responsibilities in terms of parenting time, decision making and parent transportation. The parenting plan will determine who has physical and legal custody of the former couple’s children. Physical custody concerns the child’s day-to-day living arrangements, while legal custody concerns who makes decisions surrounding the child’s health, education and welfare.  The parent with primary physical custody of the children is referred to in Tennessee as the primary residential parent and the other parent is referred to as the alternative residential parent. Each parent has the power to make day-to-day parenting decisions while the child is in his or her care.  Final decision making authority on major topics such as education, medical care, religious upbringing, and/or extracurriculars may be designated to either or both parents under the parenting plan.

 

Custody can and should be amicably agreed to by the divorcing parties as this generally leads to better long-term parent-child relationships and is generally what is best for the children involved.  If parents are unable to agree upon a custody arrangement, even after engaging in mediation, the courts will make their own child custody determination. As in most states, when making a child custody decision, the courts in Tennessee will primarily use the best interests of the child standard.  This standard will be applied in conjunction with the goal that both parents enjoy the maximum participation possible in their child’s life.  When determining what is in the best interests of the child, courts shall assess the following factors:

 

·       The emotional and physical well-being and developmental needs of the child.

·       The love and affection and overall strength of the relationship between the child and the child's parents or caregivers.  This will include taking note of who had been the child’s primary caretaker in the past.

·       The mental, moral, emotional and physical health of the parents or caregivers.

·       The reasonable preference of a child who is at least 12 years old.  Greater weight will be given to the preferences of older children.

·       The parent’s ability to provide food, clothing, a proper education, medical care and other necessities for the child.

·       The child's home, school, and community record.

·       Any history of physical or emotional abuse against the child.

·       Each parent’s employment schedule.

·       Each parent’s willingness and ability to foster a close and on-going relationship between the child and other parent.  Courts will assess parents’ past behavior when making this determination.

·       The child’s relationship and interactions with other siblings and members of their household as well as their involvement with their community, school and other activities.

·       The ongoing stability of the child.  Courts recognize the importance of continuity and the length of time the child has lived in a stable and appropriate environment.

·       In Tennessee, gender is not a factor in awarding custody. In years past, courts had favored awarding mothers custody if the children were of tender years. However, the “tender years presumption” no longer exists in Tennessee.

 

A common fact of life, especially when families are separating, is the need to relocate for family support or work opportunities.  This is, unfortunately, a complicating factor when child custody is at issue. Let us know if we can walk you through this process. 

 

When a requested move is contested by the other parent, the court will step in and decide whether to approve the request. Several factors will be considered when determining whether to allow the move, including:

·       The importance of continuity in the child's life, considering the stability of the child's current home, school, and community;

·       Whether the custodial parent will comply with a new custody and visitation schedule; and

·       The child's stated preference if they are age 12 or older.

 

Either parent can seek a modification of a child custody order if there is a material and substantial change in circumstances that effects the best interests of the child.

 

Please let us know if we can help you with your legal needs.

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