Tennessee Family Law: How Child Custody Is Decided In Divorce

On behalf of Brandon White

For many Tennessee parents ending their marriages, while divorce itself is stressful enough, the uncertainty of what the child custody arrangement will be is even worse. Tennessee law, like that of sister states, focuses on crafting a parenting plan that determines the details of custody and visitation in the child’s best interest.

To help alleviate a parent’s concern, it is recommended that he or she talk to an experienced Tennessee family lawyer early on in order to understand the intricacies of the law and how it is likely to apply to the particular family situation.

As a preliminary matter, both physical custody (who has care and control of the child) and legal custody (who makes major decisions like medical, educational, religious and so on) must be decided. Each custody type can be held solely by one parent or jointly working together.

Usually, parents will try to negotiate the terms of divorce, including custody and visitation, in an overall agreement negotiated through their divorce attorneys. If the parties are unable to agree on custody, the parenting plan must be determined by the judge in the divorce proceeding.

In doing so, the judge must always consider the child’s best interest as primary. In so doing, each parent is to be allowed the “maximum participation possible” in the child’s life considering a list of particular factors (which follow), as well as the locations of each parental home, the child’s stability and any other relevant factors.

The judge must weigh the following specific factors:

• Both parent-child relationships, including whether one parent has met most of the child’s daily needs
• Each parent’s capacity to parent, including whether he or she would encourage (and has in the past) a relationship with the other parent if doing so is in the child’s best interest
• Parent’s refusal to attend parent education sessions if court ordered
• Each parent’s disposition to provide basic care items like food, clothing, education, medical care and so on
• The degree to which a parent has been the primary caretaker
• Parent-child “love, affection, and emotional ties”
• Child’s “emotional needs and developmental level”
• Parental “moral, physical, mental and emotional fitness” as relates to parenting, including mental health histories
• Child’s relationships with siblings, other relatives, step-relatives and mentors, and involvement with school, home and “significant activities”
• Whether the child needs continuity and how long he or she has lived in a stable home
• “Physical or emotional abuse” suffered by the child, by either parent or anyone else
• “Character and behavior” and interaction with the child of anyone living with or frequently visiting a parent
• Reasonable preference of a child if at least 12; preference of a younger child at the judge’s discretion; normally giving greater weight to an older child
• Parental work schedules
• Anything else the judge thinks is relevant

If one of the parents has a history of child abuse in the family, there arises a rebuttable presumption that giving that parent any kind of custody (sole or joint, legal or physical) is not in the child’s best interest.

Tennessee law says that parental gender is not to be a factor in deciding custody. Parental disability does not create a presumption for or against custody, but can be considered if relevant.

This article introduces Tennessee child custody, but a parent should consult with knowledgeable legal counsel for guidance and representation.

With offices in Seymour, the family lawyers at White & White, Attorneys at Law, represent divorcing parents in child custody matters and clients in many types of family law issues.