Tennessee Child Custody Laws in Divorce | Memphis Divorce Attorney


Tennessee Child Custody Laws in Divorce.  Answers to Tennessee child custody in divorce frequently asked questions (FAQ’s) from Memphis divorce attorney Miles Mason, Sr. who explains Tennessee child custody laws in divorce including primary residential parent, parenting time, residential time, parenting plans, child custody, and final decision-making authority.

Tennessee Child Custody Laws in Divorce Answers to FAQs

What is a “permanent parenting plan,” and what does it mean to me?

Under Tennessee family law, a “permanent parenting plan” is a detailed, written outline providing for parenting in the best interests of the child. Parenting plans allocate parenting responsibilities, establish where the child will live, and allocate child support.

A “residential schedule” outlines when the child will be in each parent’s physical care and designates the primary residential parent. The residential schedule also details which parent’s home the child shall live in on given days of the year, including holidays, birthdays, vacations, and other special occasions.

Parents are required to attend a four-hour parenting class and enter a parenting plan with the court to qualify for a divorce. If parents cannot agree on a parenting plan by themselves, they must go to mediation and try to agree on a parenting plan before the court will hear their case.

Tennessee Child Custody Laws in Divorce by a Memphis Divorce Attorney


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What does it mean to be the primary residential parent? Is it the same as the old custodial parent?

In Tennessee, the “primary residential parent” means the parent with whom the child resides more than 50% of the time. In most cases, the primary residential parent will have the child much more than 50% of the time.  Often, the child is with the primary residential parent almost all of the time, except for every other weekend, holidays, and special events.

Most parenting plans will read: “Each parent will make decisions regarding the day-to-day care and control of each child while the child is residing with that parent.” Because most parenting decisions fall under the “day-to-day” designation, the determination of primary residential parent is important in determining how the child will be raised.

The term “custodial parent” under the old law is not exactly the same as “primary residential parent” under the new law. Under prior law, “custodial parent” generally meant the parent who exercised final decision-making authority and the parent with whom the child primarily resided. Under the new parenting plan law, these concepts are split. Final decision-making authority is separate from residential time and can be distributed by topic, such as education or religious training.

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In deciding which parent will be the primary residential parent, what factors will the court take into account?

Tennessee Child Custody Laws in Divorce

Tennessee Child Custody Laws in Divorce

Every permanent parenting plan must include a residential schedule. The court will make sure there are residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances. Parenting plans should encourage each parent to maintain a loving, stable, and nurturing relationship with the child. Courts will consider the following factors:

  • The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service and to compete successfully in the society which the child faces as an adult;
  • The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken a greater responsibility for performing parenting responsibilities relating to the daily needs of the child;
  • 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 bests interests of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  • Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in the proceedings;
  • The disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care;
  • The degree to which a parent has been the primary caregiver, defined as the parent which has taken greater responsibility for performing parental responsibilities;
  • The love, affection, and emotional ties existing between each parent and the child;
  • The emotional needs and developmental level of the child;
  • The character and physical and emotional fitness of each parent as it relates to his or her ability to parent or as it relates to the welfare of the child;
  • The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  • 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 interaction with the child;
  • The reasonable preference of the child if it is twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than the preference of younger children;
  • Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  • Any other factors deemed relevant by the court.
No one factor controls, and each factor must be weighed and considered in relation to the others. Note that any of the above factors may be overshadowed if any of the following allegations are proven: abandonment, substantial refusal to perform parenting responsibilities, physical or sexual abuse of a child or parent, emotional or physical impairment interfering with parenting responsibilities, drug, alcohol, or other substance abuse, abusive use of conflict which endangers the child’s psychological development, withholding access to the child from the other parent without good cause, a parent’s criminal conviction, or any other factors adverse to a child. Obviously, these important considerations can weigh most heavily in the event they exist and can be proven.[top]

In Tennessee, does a permanent parenting plan determine who has the final say-so?

A permanent parenting plan must allocate decision-making authority to one or both parents regarding the child’s:

  • education,
  • health care,
  • extracurricular activities, and
  • religious upbringing.

This means that which parent has the final say-so could depend on the topic.  A permanent parenting plan must also state that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent. Regardless of the allocation of decision-making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child.

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Is the mother more likely to be granted primary residential parent status and be awarded final decision-making authority in Tennessee parenting law?

The Tennessee parenting plan law states, in part:

It is the legislative intent that the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause presumption in favor of or against such party.

In practice, a mother is still more likely to be granted primary residential parent status and to be awarded final decision-making authority. Courts may make the mother the primary residential parent for reasons including the following:

  • the mother may have more time to devote to the child than a father employed in a demanding profession,
  • the mother may have more experience in child rearing, and/or
  • the mother may have an established track record in raising the child.

A court may also make the father the primary residential parent, as in the case of a couple from Germantown,Tennessee.  In that case, 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 care-giving role performed prior to or during the divorce, not the parent’s gender, that determines who will be the primary residential parent.

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What about with older kids – say, teenagers?

Fathers are more likely to be designated primary residential parents for older children, and especially for teenage boys.  Older children are considered to need less traditional “care giving” than younger children do.

The amount of time the parent has available and has actually spent in the past with a child are also very important factors in determining primary residence.

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Must a mother be declared unfit before a father will be granted primary residential parent and be awarded final decision-making authority?

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

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Does the child have any say in the choice of primary residential parent in Tennessee?

In Tennessee, if the child is over 12 years old, the court will hear and consider the child’s wishes. If the child is under 12, the court may hear and consider the child’s wishes.   The older the child, the more strongly his or her wishes will be considered.

Courts do not look favorably upon a child being coerced or coached by a parent. Courts realize that making a child choose between parents could harm the child and cause long-lasting feelings of guilt.[top]

How important is the status quo in a court’s decision concerning primary residential parent?

The status quo is very important, especially where a child seems to be well-adjusted. Tennessee courts are less likely to disrupt an acceptable situation in favor of the unknown. All other things being equal, maintaining stability can be a judge’s most important concern.

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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.

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What impact does a parent’s new spouse, live-in companion, or other person sharing the home have on a designation of primary residential parent in a Tennessee custody case?

Most courts severely frown upon children being exposed to such persons before a divorce is granted.  After a divorce is final, the court must find a material change of circumstances to change the primary residential parent. A re-marriage is not necessarily a change of circumstances, but it can be if the child is negatively affected.

If there’s a concern about the stability of the child’s environment or the mental condition or character of a parent’s new partner, that issue can become relevant in determining the primary residential parent.

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Will spousal abuse affect the designation of primary residential parent?

Allegations of abuse are relevant and important, but technically not controlling. Where abuse is shown to have affected the children, the court will consider this along with the other factors discussed above.

Courts look at abuse allegations closely. If a judge believes a spouse has made a false accusation of abuse to gain an advantage in litigation, the consequences will be serious.

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What are the rights of the primary residential parent in Tennessee?

The primary residential parent has final decision-making authority over the day-to-day care and control of each child while the child lives with that parent.  A Tennessee parenting plan allocates final decision-making authority between the parents on topics such as education, health care, extracurricular activities, and religious upbringing. This authority may also be shared.

A parent’s authority is never absolute. A parent who disagrees with the parent with the decision-making authority can initiate mediation to “discuss” whether the other parent’s decision is in the best interest of the child. If mediation is unsuccessful in resolving the issue, then the unhappy parent can challenge the decision in court. However, judges will rarely overrule a parent’s decision unless that decision will endanger the child.

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What are the rights of the other parent (alternate residential parent) in Tennessee?

The following are the rights of a parent during those times when the child is not in the care of that parent. Both parents have the right:

  • To unimpeded telephone conversations with the child at least twice each week at reasonable times and for a reasonable duration;
  • To send mail to the child which the other parent shall not open and will not censor;
  • To receive notice and relevant information as soon as practical (but within 24 hours) in the event of hospitalization, major illness, or death of the child;
  • To receive directly from the school, upon written request, which includes a current mailing address, and upon payment of reasonable costs of duplicating, 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;
  • Unless otherwise provided by law, to receive copies of the child’s medical, health, or other treatment records directly from the physician or health care provider who provided such treatment or health care upon written request which contains a current mailing address and upon payment of reasonable costs of duplication, provided that no person who receives the mailing address of a parent as a result of this requirement shall provide that address to the other parent or to a third person;
  • To be free of derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;
  • To be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular activities, and the opportunity to participate or observe in those activities, including, but not limited to, the following: (i) School activities, (ii) Athletic activities, (iii) Church activities, and (iv) Other activities during which parental participation or observation would be appropriate;
  • To receive from the other parent, in the event the other parent leaves the state with the minor child for more than two (2) days, an itinerary, including telephone numbers, for use in the event of an emergency; and
  • Access and participation in the child’s education, including the right of access to the minor child for lunch and other activities, on the same basis that is provided to all parents, provided the participation or access is reasonable and does not interfere with day-to-day operations or with the child’s educational performance.

The rights above also apply to the primary residential parent when the child is spending time with the other parent.

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If the primary residential parent wants to move out-of-state with the child, will this be permitted?

Yes.  If the moving parent complies with the Tennessee Relocation Statute, the move is not motivated by vindictiveness, and the move is in the best interest of the child, it will be permitted. However, timely notice must be given to the other parent.

Consulting an experienced Tennessee family law attorney well in advance of moving is strongly advised. A parent seeking to prevent the move will likely petition the court for a change of designation of primary residential parent. For more information, read about Tennessee’s parental relocation law.

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May the parent remove the child from Tennessee temporarily, such as for a 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’s always a good idea to be up front in these situations and to provide cell phone numbers and a reasonably detailed itinerary.

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Once there is a determination of primary residential parent in Tennessee divorces, 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.

In determining whether there has been a change of circumstance, an important consideration will be whether or not the child is doing poorly in an important aspect of life, such as in school, and the reasons for this. Unless there’s something objectively wrong with the child, a court may be unwilling to change an arrangement that appears to be working. Further, under most parenting plans, the parents will be required to mediate these disputes prior to heading to court.  For more information, see Tennessee Parenting Plan Modification | What Must Be Proven to Modify.

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

In Tennessee, the child’s wish for a change of primary residential parent is not, by itself, a sufficient cause for modification. Even if a child’s feelings are very strong, the child’s preference will be just one factor to consider.

If the child is older, the court will give more weight to the child’s preference. The court may question whether the child has been bribed or coerced by a parent. Also, a court will not look favorably at allowing a child, especially a teenager, to avoid discipline at the stricter parent’s home.

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Does the court refuse to modify a parenting plan within a short period of time after its determination of primary residential parent?

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

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What effect does an allegation of child abuse or neglect have on the determination or modification of the choice of who is to be the primary residential parent?

Serious mistreatment or violence against a child will justify a parenting plan modification. A court will distinguish abuse from a strict approach to discipline and will require evidence supporting an allegation of abuse or neglect. A guardian ad litem, attorney ad litem, or other trained professional will likely be assigned to investigate the charges and report to the court.

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Will a primary residential parent’s misconduct lead to a modification?

It depends. A moral indiscretion or legal problem will not suffice for a change of primary residential parent if the child is otherwise leading a normal and well-adjusted life.

The effect on the child will be the central issue. If the child is unaware of the mistake or error in judgment, this will be a mitigating factor.

Most judges will order, upon request, that a primary residential parent not live with his or her lover or allow a romantic friend to spend the night in the presence of the child.  The court may order a change in primary residential parent status only upon repeated violations of such a court order.

In any event, the court will consider the circumstances and look for objective manifestations of harm to the child. If there are none, the primary residential parent will likely not be changed unless the improper conduct is especially egregious.

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Will the relative affluence of the parents affect the decision awarding primary residential parent status?

A wealthy parent may be seen as able to offer a child better education and other opportunities. 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. In these situations, parental priorities are the central issue.

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What is “shared parenting,” and how does it work?

In Tennessee, “shared parenting” can mean several things. Often, “shared parenting” means children will spend roughly equal time with each parent. If parents share final decision-making authority and there is a dispute, the method for resolving that dispute must be spelled out in the parental plan.  The court will usually require that the parents engage in mediation before asking the court to resolve the dispute.

By separating parenting or residential time from decision-making authority, and by eliminating the terms “custody” and “visitation” from the new vocabulary, the new parenting plan law aims to reduce “custody wars” and encourage “co-parenting.”

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If the parents share decision-making authority, does that mean no one pays child support?

No. In most circumstances, the only way child support will not be ordered is if the child resides with each parent a roughly equal amount of time.  Otherwise, the primary residential parent will receive child support from the other parent.

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Can I stop my spouse from seeing the children if I don’t get my Tennessee child support payments?

No. Visitation or parenting time may not be prevented by a parent without a court order. Failure to pay child support is not grounds for termination of visitation or parenting time rights.

To collect child support, there are other options, such as filing a petition for contempt seeking to put the non-paying parent in jail.  For more information, see Tennessee Child Support Enforcement and Collection.

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

No. Enforcement of visitation or parenting time rights begins with filing a petition or referring the matter to mediation. Persistent violations of a court-ordered right to visitation or parenting time can be grounds for a change of the primary residential parent.

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If I am considering entering into a legal fight over primary residential parent status, what else should I know?

There are few things in life more difficult or expensive than disputes over parenting time and final decision-making authority. Be sure that you’re fighting 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’ll need to be able to prove the child will live a better life with you. This means you need evidence. Plan ahead, and discuss this with your experienced Tennessee family law attorney.  There are many good books and parenting magazines available at bookstores and libraries and online. Read them.

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For updates, analysis, and case law, see the MemphisDivorce.com Tennessee Family Law Blog and its Child Custody category.  Also, for a more detailed discussion of parenting issues, child support, and 8 examples of parenting plans from real Tennessee cases, purchase the Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family, by Miles Mason, Sr. available on Amazon.

 

References, Resources and More:

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