Tennessee Child Custody Laws | Answers to FAQs
Answers to Tennessee child custody in divorce frequently asked questions (FAQ’s) from Memphis divorce attorney Miles Mason, Sr. including primary residential parent, parenting time, residential time, parenting plans, child custody, changing custody, visitation, and final decision-making authority.
Tennessee Child Custody Laws | Answers to FAQs
What does sole custody mean in Tennessee custody law?
Traditionally, sole custody meant the parent who had more time with the children and who was granted sole decision-making authority over the children. However, sole custody no longer exists as a meaningful legal term in Tennessee law. In 2001, Tennessee’s parenting plan law created parenting plans. Sole custody as a legal term was changed and primary residential parent (PRP) was created (and PRP means something different). Primary residential parent refers to the parent with whom a child lives more than with the other parent. The other parent is the alternative residential parent, or ARP.
The legal term “custodial parent” under the old law is not exactly the same as “primary residential parent” under the current law. Under prior Tennessee child custody law, custodial parent generally meant the parent with whom the child primarily resided and the parent who exercised final decision-making authority. Under current parenting plan law, these concepts are split. Final decision-making authority is separate from residential time and can be allocated by topic, such as education or religious training. Day-to-day parenting decisions are determined by the parent with whom the child resides on any given day. All aspects of final decision-making authority (education, non-emergency health care, religious upbringing, and extracurriculars) may be determined by one particular parent or by both parents jointly.
What does full custody mean in Tennessee custody law?
Traditionally, full custody meant roughly the same thing as sole custody. In general, a parent with full custody had the absolute right to make all parenting decisions. Physical custody related to how much time a parent spent with the child. In the same general sense, the legal custodial parent was the parent with most, if not all, final decision-making authority. The parent with sole custody, or full custody, meant the parent with both physical and legal custody.
Although full custody no longer exists as a meaningful legal term, Tennessee lawyers and judges may still be heard in courtrooms using the words custody, sole custody, or full custody descriptively; meaning the parent with whom a child resides more than the other parent and who has final decision-making authority.
Be mindful that when Tennessee permanent parenting plans became a requirement in 2001, the legal terms Tennessee used to describe custody concepts completely changed, too. In addition to changing custodial parent and non-custodial parent to primary residential parent and alternative residential parent, the legal term “visitation” was changed to “parenting time” or “residential time.” Each parent enjoys parenting time, or residential time, when a child is in that parent’s care.
What does joint custody mean in Tennessee custody law?
In Tennessee child custody law, joint custody never really had a clearly defined legal meaning. As a general term, joint legal custody meant that both parents shared equally the right to care for and supervise a child. And that both parents shared equal authority to make important decisions regarding education, non-emergency health care, choice of religion, and extra-curricular activities. Joint physical custody meant, generally, that both parents shared the duty of care and physical supervision; and that both parents shared equal or roughly equal time with the child. In conversation, however, judges and lawyers may still use the term joint custody in its general sense to describe parents who share equal time or roughly equal time.
Before the 2001 Tennessee custody law created the permanent parenting plan requirement, one major problem with the term joint custody came from parents who described themselves in divorce settlements as having agreed to joint legal custody or joint physical custody. Those generalized descriptions had no strict legal definition in application. The result was confusion and court disputes over parenting time and final decision-making authority. In other words, those vague legal terms created more problems for families and the courts than they solved.
What does primary residential parent mean in Tennessee custody law?
In Tennessee, the term primary residential parent, or PRP, means the parent with whom the child resides more than 50% of the time. For other legal reasons, a primary residential parent must be declared even when parents share exactly equal time with their child.
What are the rights of the primary custodial parent in Tennessee?
Both the primary residential parent and the alternative residential parent have authority to make decisions on the day-to-day care and control of the child while the child resides with that parent. Because most parenting decisions fall under the day-to-day designation, the determination of primary residential parent is very important in determining how the child will be raised. (This is especially so on school nights and school mornings.) 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 final decision-making authority may also be shared jointly.
Understand that a parent’s authority is never absolute. When one parent disagrees with the other parent who has final decision-making authority, he or she can initiate mediation to address whether the other parent’s decision is in the best interests of the child. If mediation is unsuccessful in resolving the issue, then the disagreeing parent can challenge the decision in court. In practical application, however, most judges are hesitant to overrule a parent’s decision unless it will endanger the child.
What does alternative residential parent mean in Tennessee custody law?
In Tennessee custody and child support law, alternative residential parent (ARP) simply means the parent who has less parenting time than the primary residential parent (PRP). In almost all situations, the alternative residential parent will pay child support to the primary residential parent. Depending upon the parents’ relative earnings and parenting time, it is possible in Tennessee for the PRP to pay child support to the ARP.
What are the rights of the non custodial parent in Tennessee?
In Tennessee, non-custodial parent is a commonly used term imprecisely describing the alternative residential parent, or ARP. The rights listed below apply to both parents, although they are often referred to in conversation by judges and family lawyers alike as “non-custodial parental rights” or just “parental rights.” Pursuant to Tennessee Code Annotated Section 36-6-101(a)(3):
Except when the court finds it not to be in the best interests of the affected child, each order pertaining to the custody or possession of a child arising from an action for absolute divorce, divorce from bed and board or annulment shall grant to each parent the rights listed in subdivisions (a)(3)(A)(i)-(vi) during periods when the child is not in that parent’s possession or shall incorporate such rights by reference to a prior order . . .
(A) The referenced rights are as follows:
(i) The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in a parenting plan or other court order or, where days and times are not specified, at reasonable times;
(ii) The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order;
(iii) The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant healthcare providers with the contact information for the other parent;
(iv) The right to receive directly from the child’s school any educational records customarily made available to parents. Upon request from one (1) parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child’s education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request which includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child’s report cards, attendance records, names of teachers, class schedules, and standardized test scores;
(v) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one (1) parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person;
(vi) 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;
(vii) The right to be given at least forty-eight (48) hours’ notice, whenever possible, of all extracurricular school, athletic, church activities and other activities as to which parental participation or observation would be appropriate, and the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order;
(viii) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than forty-eight (48) hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and
(ix) The right to access and participation in the child’s education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school’s day-to-day operations or with the child’s educational schedule.
The rights listed above also apply to the primary residential parent when the child is spending time with the alternate residential parent. Normally, these Tennessee rights are listed near the end of the standard permanent parenting plan order. Laws do change over time. Always check for updates to Tennessee child custody laws.
What does residential time and parenting time mean in Tennessee custody law?
In Tennessee custody law, residential time and parenting time mean the same thing and can be used interchangeably. In everyday conversation, though, judges and lawyers may still use the word “visitation.” In this general sense, visitation merely refers to the time a non-custodial parent spends with the child. Parenting time and residential time both refer to the time each parent enjoys with the child or children.
What is a parenting plan in Tennessee?
Under Tennessee family law, a permanent parenting plan is a detailed, written outline providing for parenting in the best interests of the child. A parenting plan must be completed on a particular form issued by the Supreme Court of Tennessee. Parenting plans allocate responsibilities between parents, including final decision-making authority, parenting time (also called residential time), and parent transportation. Furthermore, parenting plans establish where the children will live, and allocate child support by attaching child support worksheets.
The 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.
Divorcing Tennessee 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 make a good faith effort to agree on a parenting plan before the court will hear their divorce case.
For more information about Tennessee parenting plans, read about Parenting Plans.
Who will have final decision making authority in Tennessee custody law?
A permanent parenting plan must allocate final decision-making authority to one or both parents regarding the child’s education, health care, extracurricular activities, and religious upbringing. Which parent has the final say-so could depend upon the subject. (For example, education might be for one parent to finally decide while extracurriculars are for the other parent to finally decide.) A permanent parenting plan must also state that each parent is to make the day-to-day decisions regarding care of the child when residing with that parent. Regardless of the allocation of decision-making in the parenting plan, the parties may agree that either parent make emergency decisions affecting the health or safety of the child.
Will parenting time affect child support in Tennessee custody law?
Absolutely. Parenting time for each parent is listed in the parenting plan as a total for a year’s time. This calculation of custody days (parenting time) is a very important variable in the calculation of Tennessee child support pursuant to the Tennessee child support guidelines and child support worksheets.
Note that with child support modification determinations, the parent receiving support may argue that the number of parenting days actually exercised should be used to calculate child support, and not necessarily the number listed in the parenting plan.
How is a day of parenting time determined in Tennessee custody law?
In the majority of cases under Tennessee custody law, spending most of a day and overnight with a parent will count as “a day.” For child support purposes, though, calculating the number of parenting days for the alternative residential parent (ARP) can sometimes be quite complicated.
A day of parenting time occurs when a child spends more than 12 consecutive hours in a 24-hour period under the care, control, or direct supervision of one parent or caretaker. The 24-hour period need not be the same as a 24-hour calendar day. Accordingly, a day of parenting time may be either an overnight period or a daytime period, or a combination of daytime and nighttime hours. There are exceptions. An example could include a parenting situation where the ARP is scheduled to pick up the child after school three or more days a week and keep the child until 8 p.m. The three partial days could be considered a single day for parenting time purposes. As with many aspects of Tennessee child support, the final answer may be negotiated between the parents as part of a compromise or be determined by a judge on a case-by-case basis.
How is child custody determined in Tennessee child custody law?
In Tennessee custody law, parents are required to attend a four hour parenting class, attend mediation, and try to negotiate a permanent parenting plan in good faith. If the parents agree on a permanent parenting plan (recorded in detail on a specific form required by Tennessee custody law), that plan will be submitted for review and approval by the judge. If the parents cannot agree on child custody and a permanent parenting plan in Tennessee, then the judge will decide who will serve as the primary residential parent (PRP) at a trial. Forty-five days prior to trial, each parent is required to submit a proposed permanent parenting plan. The Tennessee judge decides custody in the best interest of the child and has authority to choose between the two plans or may order a different plan.
Who will get custody of our children in Tennessee?
If no settlement on a Tennessee parenting plan is reached at mediation, then the judge must determine the primary residential parent based upon the children’s best interests. Tennessee law directs judges to consider a series of Tennessee child custody factors and related concerns to determine what is in the best interests of the children. Unless there is abandonment, abuse, or other extraordinary circumstance, the parent not chosen as the primary residential parent will be awarded parenting time with the child.
What are the child custody factors in Tennessee law?
As of 2014, Tennessee child custody law was amended. See Child Custody Factors in Tennessee Divorce Law. Tennessee Code Annotated Section 36-6-106 directs the court to base its custody decision upon the best interest of the child. Furthermore, the court must take into account that both parents should enjoy the maximum participation possible in the child’s life, the location of their residences, the need for stability, and a series of listed child custody factors.
Generally, those Tennessee child custody factors include: the child’s relationship with each parent; who has served as the primary caregiver for the child’s daily needs; capacity and track record for facilitating and encouraging a strong relationship with the other parent; refusal to attend the parent education seminar; history and ability to provide food, shelter, clothing, education, and health care; emotional ties with the child; emotional and developmental needs of the child; the moral, physical, mental, and emotional fitness of the parents; interaction with siblings, relatives, and others with whom the child interacts; continuity and length of time the child has lived a stable life; evidence of physical and emotional abuse; the character of any other person who resides in the home of a parent; reasonable preference of a child age 12 or older; parents’ work schedules; and any other factors the court considers relevant. However, a mother’s or father’s disability should not count against that parent.
Laws change over time. Be sure you have the most current listing of the child custody factors. Double-check the Tennessee child custody law and factors listed in Tennessee Code Annotated Section 36-6-106.
No one factor controls. Each child custody factor must be weighed and considered in relation to the others. Note that any of the factors mentioned above may be overshadowed if allegations are proven showing: 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 issues are so serious, proof of the allegation could result in restricted or supervised parenting time or, in extreme circumstances, termination of parental rights.
How do I file a petition for child custody in Tennessee?
Under Tennessee child custody law, if the parents are married, then one parent typically files a divorce complaint initiating the divorce, each parent attends a four-hour parenting class, settlements are exchanged, and both parties attend mediation to try and settle all disputes before a hearing is held. In order to change Tennessee child custody after a divorce has been granted, a parent may petition the court to change the primary residential parent or seek to amend parenting time. The petition to change primary residential parent must include a proposed permanent parenting plan and a verified statement of income.
If Tennessee parents were never married, then a petition to establish parentage must be filed first. Thereafter, child custody, child support, and parenting time are determined by settlement agreement or, if no agreement is reached, by trial.
What should I know before a Tennessee child custody trial?
There are few things in life more difficult or expensive than disputes over parenting time and final decision-making authority. Be sure that you are fighting for the right reasons. Children caught in the middle of a custody battle can suffer extreme emotional distress. Some examples of the wrong reasons to fight for child custody could arguably include the need for greater child support (or to pay less child support), an unwillingness to pay child support, a fear of societal judgment, and retribution. Mediation is required. Negotiate in good faith. If an agreement can be reached, do everything possible to make it so.
How do I win child custody in Tennessee?
Strategies for winning a Tennessee child custody battle are best discussed with an experienced Tennessee child custody attorney. Every case is different, but here are a few tips from which to start. Gather evidence from objective sources to prove your case. Who are key witnesses not related to you? Teachers, coaches, or neighbors? Is there emotional abuse or other mental health concerns? Consider engaging a forensic psychologist. If you are defending against a petition to change child custody, then be prepared to prove that the children are healthy, happy, and well-educated under your care. If you are seeking a change in child custody, then be prepared to prove what is wrong with the children’s lives, why a change is warranted, and what you will do differently to improve the children’s lives. For more discussion, see Top 7 Tennessee Custody Divorce Strategies | How to Win Custody in a Tennessee Divorce.
What is shared parenting in Tennessee?
In Tennessee child custody law, the legal term “shared parenting” can mean different things depending upon the context of its use. Shared parenting can mean the children will spend roughly equal time with both parents, or exactly equal time. In other circumstances, shared parenting can mean parents share final decision-making authority.
Should a dispute over important parenting decisions arise, the process for resolving that dispute should be spelled out in the parenting plan. Most judges usually require that parents attend mediation before asking the court to resolve their dispute. By separating parenting time, or residential time, from decision-making authority, and by eliminating the terms “custody” and “visitation” from the new vocabulary, Tennessee’s parenting plan law aims to encourage co-parenting and reduce disputes.
If I have child custody in Tennessee, will I receive child support?
Generally, yes. In most situations, but not all, the primary residential parent (PRP) will receive child support from the alternative residential parent (ARP). However, it is possible that, if the PRP earns more than the ARP, the PRP may be ordered to pay Tennessee child support to the ARP. For more information, see In Tennessee, Can a Custodial Parent Owe Child Support?
If both parents share equal custody must a parent pay Tennessee child support to the other parent?
Yes. In Tennessee child custody and child support determinations, the Tennessee child support guidelines are designed to require that one parent pay child support to the other parent. Who pays whom and the exact amount of child support owed depends upon each parent’s earnings, each parent’s number of days parenting the child, who pays how much in health insurance premiums, who pays how much in work-related child care, and other expenses and adjustments. Some exceptions apply, of course. In theory, a court could approve a “downward deviation” allowing a Tennessee child support obligation to be less than the amount set under the Tennessee child support guidelines. Adequate grounds for a downward deviation are very limited, though. For more information, read 50/50 Equal & Shared Parenting Time in Tennessee Child Support Laws.
How do child abuse allegations affect Tennessee child custody?
Allegations of child abuse are relevant and important, but technically not controlling in Tennessee child custody law. When abuse is shown to have affected the children, the court will consider this along with the other child custody factors (discussed previously). Serious mistreatment or violence against a child will justify a parenting plan modification that could provide for supervised parenting time or even termination of parental rights. A court will distinguish abuse from a strict approach to discipline and, also, will require evidence supporting an allegation of abuse or neglect. A guardian ad litem, attorney ad litem, psychologist, or other trained professional can be assigned to investigate the charges.
Without question, Tennessee judges should protect the physical safety of children and spouses. A parent or spouse may seek a protective order from the court in cases of abuse. For more information about seeking a protective order in Memphis, Germantown, Collierville, Bartlett, or elsewhere in Shelby County, Tennessee, visit The Crime Victims Center (CVC) located at 1750 Madison Ave., Suite 100, Memphis, Tennessee 38104. Call (901) 222-3950. The National Domestic Violence Hotline is 1-800-799-7233 and their website can be found at http://www.thehotline.org/.
What is Supervised Visitation in Tennessee Custody Law?
In Tennessee child custody law, there is no strict definition for supervised visitation. In general, supervised visitation describes restricted parenting time. The parent must 0nly see the child in the presence of a third person who supervises the parent-child visitation. In most situations, that third person is either on the court listing or is someone agreeable to the primary residential parent. The supervising person is often a mutual friend or family member, someone both parents agree upon. In more difficult situations, Shelby County, Tennessee, courts may require visitation be supervised at The Exchange Club.
The purpose of supervised visitation is to reduce any risk of harm to the child. This follows proof or allegations of difficult situations such as abuse, neglect, an extended break in contact, or addiction concerns. How close must the supervision person be? In general, it depends upon the reason for supervised visitation. The supervising person should stay close enough to make sure the visiting parent is not manipulating or coercing the child in any way, but may not be unnecessarily intrusive. See The Exchange Club website for a more detailed description of services provided.
How do false allegations of child abuse affect Tennessee child custody?
Courts look closely at all abuse allegations in all Tennessee child custody matters. If allegations of spousal abuse, child abuse, or child sexual abuse are proven false, then Tennessee judges will consider that evidence very seriously. While the natural reaction of judges is to protect children, most experienced judges have a keen eye. Judges understand how some accusers may try to benefit from making such allegations. When an allegation of abuse is proven to be false, a Tennessee judge could react in a number of ways. The judge could significantly restrict parenting time for the parent who made false allegations, could require counseling, or could appoint an independent child custody evaluation by a psychologist for additional recommendations. Parents who made false accusations of child abuse often lose almost all credibility with judges. The results can be devastating.
Can an abusive parent get custody in Tennessee?
A Tennessee parent who is a proven abuser can have an extremely difficult road to be selected as the primary residential parent. Here is one situation that comes to mind: when the other parent has had his or her parental rights terminated and the abusive parent has fully and satisfactorily completed a regimented treatment or counseling program. An abusive parent can become rehabilitated through adequate counseling and treatment with a mental health professional, which must be documented. The parent who was proven to be an abuser will rarely be awarded child custody in Tennessee over a non-abusive parent. That is, unless the non-abusive parent has many serious issues as well.
How do I obtain attorney fees for custody cases in Tennessee?
Courts have legal authority to award temporary alimony, child support, and attorney’s fees as part of a divorce. If the case is tried, then Tennessee courts can award attorney’s fees to a parent for representing the child’s best interests. As part of a child custody modification action, some Tennessee judges are more likely to award attorney’s fees for successfully defending child custody or defending the child’s best interests than they are to the person who filed the court action.
What are some co-parenting tips for parents disputing Tennessee child custody?
To avoid Tennessee child custody disputes, parents should learn what it means to co-parent. In general, co-parenting means both parents must make every effort to cooperate with each other and put aside disputes for the sake of their children. Experts tell us that co-parenting results in healthier and happier children who feel more secure during and after their parents’ divorce. With co-parenting, children of divorce grow up with fewer emotional problems. If parents continue to bicker and argue, then they will have the same results as when they lived together. Children of divorcing parents who cooperate will, more often than not, have greater self-esteem with lives that turn out better.
Divorcing parents should work together to establish the same rules at both houses, like bed times, study hours, and rules for limiting video game time. They should always foster and encourage a meaningful relationship with the other parent. Co-parenting means making children available for all scheduled parenting time. Divorcing parents should do everything possible to never frustrate or cancel the other parent’s scheduled time. They should avoid putting the children in the middle of arguments. Parents should communicate directly. Children should never be used as messengers for scheduling time and demanding child support payments – even when payments are due or late. Parents should be flexible with parenting time changes based on the child’s schedule. If there are trouble spots, parents should keep a parenting journal and record parenting time exercised and missed. Note important events and concerns. Memories fade with time.
To learn more about co-parenting, see Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family by Miles Mason, Sr., available on Amazon.com.
What evidence should I collect for my Tennessee child custody case?
In Tennessee child custody cases, evidence is key. In most cases, both parents love their children immensely. Avoid entering court with just your own testimony and the testimony of your friends and family. Judges assume every parent can produce several witnesses loyal to their cause. Offer objective and documented proof of involvement in the children’s lives. Keep a detailed parenting journal. Take lots of photos showing daily involvement with the children. Be prepared to offer proof that the children are healthy and successful with report cards, medical records, dental records, or payments for visits to dentists, doctors, and the like. Know all of the children’s teachers, coaches, tutors, and other important people in your children’s day-to-day lives. Communicate with them regularly. Show up to all regularly scheduled school, sports, and extracurricular activities, such as parent-teacher meetings, practices, games, and special events. If there are any altercations or important events, have testimony from unbiased witnesses. These are the basics, but there is much more. Talk with your experienced Tennessee child custody attorney about gathering more evidence specific to your situation.
How do I increase my chances for more parenting time in Tennessee?
In Tennessee child custody cases, get your parenting time secured the way you want it as early as possible following separation. When the children are doing well, the more likely a court is to continue what is working right. If you have any concerns whatsoever, discuss them with your Tennessee child custody lawyer.
What are Father’s Rights in Tennessee child custody law?
In Tennessee child custody law, the meaning of Father’s Rights depends upon the context used. Understand that in Tennessee, it is settled law that mothers have no superior rights to child custody over fathers. It would be a constitutional violation of a parent’s rights to favor one gender over the other in a custody dispute. Tennessee child custody law requires that courts determine parenting time so both parents enjoy the maximum participation possible in their children’s lives.
You may read about Father’s Rights in the context of courts automatically relegating fathers to having only “standard visitation,” meaning parenting time only every other weekend, two weeks in the summer, and splitting holidays. While some judges may assign (or have assigned) this parenting time routinely, today Tennessee child custody judges will grant the father (or mother) who is not the custodial parent a hearing to evaluate parenting time. Fathers are being awarded more parenting time than ever. Especially those fathers who have track records of day-to-day involvement in caregiving, education, and extracurricular activities. Times have changed! For more on this topic, see Memphis Father’s Rights.
Is a mother more likely to be granted primary residential parent status in Tennessee parenting law?
Legally speaking, no. Tennessee child custody law states, in part, “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.” When a child is doing well, the parent who has been the primary caregiver is more likely to be granted primary residential parent status. Tennessee child custody will often be awarded to the parent who may have more time to devote to the child than the parent employed in a demanding profession; to the parent with more experience in child rearing; and to the parent with an established and successful track record raising the child. If that person is a child’s mother, then the mother may have an advantage. In today’s complicated world, though, more fathers than ever are equally involved in child rearing.
Tennessee child custody courts often declare a father the primary residential parent, as in the case of a couple from Germantown, Tennessee, disputing child custody. The father had fulfilled the traditional primary caregiving role before the divorce and received full custody after a trial. He proved the children were well-cared for physically, received good grades, and were emotionally stable. In most cases, it is the caregiving role performed prior to or during the divorce, not the parent’s sex, that has the greatest impact on who will be the primary residential parent in a contested child custody case.
Will a parent with more money win custody in Tennessee?
Under Tennessee child custody law, the parent with more money is not more likely to win custody. While a parent with greater earnings may be seen as more able to offer the child better educational and extracurricular opportunities, the ability to provide more opportunities is only one Tennessee child custody factor to consider. The more devoted parent, the one who sacrifices and makes time for a child, will almost always prevail over a wealthy parent who spends significantly more time at his or her career. Parental priorities are always a central issue in child custody determinations. In theory, if a child has a specific, special financial need, then child support could be adjusted to cover that need.
Who gets custody of an older child in Tennessee divorce?
Depending upon the particular circumstances, in Tennessee child custody law a parent who is the same sex as the child may have a better chance at being designated primary residential parent for an older child, especially a teenager. Older children are perceived as needing less traditional caregiving than younger children, often benefitting from the advice a parent of the same gender can offer. The amount of time the parent has available, along with the time actually spent with a child, remains a very important factor in determining child custody.
Can a child choose who they want to live with?
No. In Tennessee child custody law, if a child is over 12 years old, then a parent can request the court consider the child’s wishes in a contested child custody matter. When the child is under 12, the court may hear and consider the child’s wishes. The older the child, the more likely the court will consider the child’s preference.
What age can a child pick who they want to live with in Tennessee?
In Tennessee child custody law, a child who is age 12 or older can testify following a request by one of the parents. In that instance, the child’s wishes can be considered by the court. Courts do not look favorably upon a child being manipulated, coerced, or coached by a parent. Many Tennessee judges realize that creating a situation in which a child, by testifying, is made to feel as if he or she must choose between parents could seriously harm the child emotionally, perhaps causing long-lasting feelings of guilt or loss.
How important is the status quo in a court’s decision concerning primary residential parent?
Very important. In Tennessee child custody matters, status quo refers to what the parents have been doing to raise the child. When parents are separated and one parent has the child on all school nights and school mornings, the court will likely first determine how the status quo is working. Where a child seems to be well-adjusted, is making good grades, and is otherwise happy, the status quo can be very, very important to a Tennessee child custody judge. Judges are less likely to disrupt a working situation in favor of change to the unknown. All other things being equal, maintaining stability in the child’s life can be a judge’s primary concern.
Are siblings always kept together?
In Tennessee, child custody judges want to keep siblings together in almost all situations. For a court to split siblings between the parents, there must be a compelling and serious circumstance. Even if the divorcing parents agree to split siblings, the court may reject the proposed arrangement.
Will my dating affect child custody?
Dating a new person prior to divorce will almost always impact settlement negotiations. The parent who is not in a new relationship may feel left behind and have very hard feelings.
Evidence of dating and possible sexual relations can be used to argue that the dependent spouse is cohabitating with the new person. If so, that evidence could be used to seek a reduction or termination of temporary alimony.
In Tennessee child custody disputes, many judges severely frown upon a child being exposed to the parents’ romantic interests before a divorce is granted. Even if a parent has already been dating, and brought the boyfriend or girlfriend around the children, that parent may have to defend against a claim that there has been a negative impact on the children’s well-being. When a parent has several different partners, or exposes the children to a new romantic relationship, this may send a message to the judge that the parent is not behaving responsibly. That the parent lacks the appropriate priorities and good judgment needed to be designated primary residential parent. Save dating and sexual relations with others until after the divorce is granted.
After a divorce is final, the situation becomes more practical and will depend upon the age of the child. As both parents enter the dating world, courts expect them to exercise prudent judgment. On the one hand, a parent who introduces the child to a new love interest because the relationship is serious, well that is understandable. On the other hand, no judge wants a child to be exposed to an endless parade of new romantic interests. Parents are encouraged to discuss dating and, possibly, even agree on some unofficial ground rules.
If a new romantic interest is a train wreck, say a person convicted of a sex crime or serious drug dealing offense, then that will result in the court’s reasonable strict scrutiny. When a serious concern arises about the stability of the child’s environment, including the mental condition or character of a parent’s new partner, that issue can become relevant in determining the primary residential parent. To change Tennessee child custody, the court must first find a material change of circumstances which materially affects the child’s well-being. Ordinarily, re-marriage is not automatically considered grounds for modifying a primary residential parent designation, but it can be if a child is negatively impacted.
What is a guardian ad litem in Tennessee child custody law?
A Guardian Ad Litem (GAL) is usually a licensed attorney appointed by the court to represent and advocate for the best interests of a child (or children) in a contested custody proceeding. Supreme Court of Tennessee Rule 40a: Appointment of Guardians Ad Litem in Custody Proceeding sets specific guidelines, rules, and limitations for Tennessee courts to follow in child custody cases. It is very detailed. The exact role performed by a GAL may be specific to the judge and circumstances of the case. Although it is most helpful when judges list specific goals and tasks to be performed in the order appointing the GAL, frequently they do not because circumstances so often change during the case.
Should I ask that a guardian ad litem be appointed?
That depends. Speak with your experienced Tennessee child custody lawyer. This can be a very important strategic decision. A judge may appoint a guardian ad litem when circumstances require, regardless of whether a parent requested that appointment.
Can temporary custody be awarded in Tennessee child custody law?
Yes. If parents cannot agree on a parenting arrangement while the divorce is pending, then either may request the court determine a temporary parenting plan. Some judges may refuse such a request, however, because hearing a contested petition for a temporary parenting plan can be just as involved, difficult, and lengthy as a custody trial.
What is an ex parte temporary award of custody?
In most circumstances, ex parte means the court makes a decision without all of the parties in the lawsuit being present. With Tennessee child custody law, an ex parte child custody order typically involves one parent’s request for an emergency temporary custody order without giving notice that he or she is appearing in court to the other parent. Typically, a court only issues an ex parte custody order if there are allegations of domestic violence, child abuse, or other circumstances creating an unjustifiable and substantial risk of harm to the child. To protect a child from harm, a parent usually asks the court to declare him or her as temporary primary residential parent and, possibly, require supervised parenting time (supervised visitation) for the other parent. This type of petition is rare and is only granted if specific procedural requirements are met. In almost all situations in which a court issues an ex parte order, the other parent is entitled to a full hearing within a certain time frame or, in the alternative, as soon as the court can hear the matter.
Do grandparents have custody rights in Tennessee?
For grandparents to have custody rights in Tennessee law, parental rights must be terminated or otherwise severely restricted by a court. In most cases in which one or both parents’ rights have been terminated or restricted, the parents were shown to be unfit, were physically abusive, or posed a substantial risk of harm to the child. In general, this determination can be associated with a case seeking to declare a child dependent and neglected. Specific Tennessee laws apply to dependency and neglected actions. Typical cases involve parents who are incarcerated, addicted to drugs, physically abusive, or who have abandoned their children.
Do grandparents have visitation rights in Tennessee?
Yes. Tennessee child custody law includes grandparent visitation laws granting the court authority to award visitation rights to grandparents, but only in certain limited circumstances.
What are Tennessee child custody laws for grandparents?
Generally, for a grandparent to be awarded visitation rights under Tennessee child custody law, that grandparent must have an established relationship with the grandchildren, but been denied all visitation access. See Tennessee Grandparent Visitation Rights Law for more details.
Can I change custody after divorce?
To change custody after Tennessee divorce, there must first be a material change of circumstances which materially affects the child’s well-being. Tennessee child custody law lists certain events and circumstances which can be considered a change of circumstances. If the court does find a change of circumstances, then the custody change must be in the best interest of the child before modifying who the primary residential parent shall be.
What is Tennessee law on changing custody?
In determining whether there has been a change of circumstances which materially affects the child’s well-being, an important consideration is whether or not the child is doing poorly in an important aspect of life (such as a significant drop in grades) and the reasons for this change. Unless there is something objectively wrong with the child, a court may be unwilling to change an arrangement that otherwise appears to be working. Furthermore, the parents will be required to mediate these disputes before heading to court. For a discussion on this, see Tennessee Parenting Plan Modification | What Must Be Proven to Modify.
What is Tennessee law on changing visitation?
The legal inquiry and what must be proven is essentially the same as custody (described above), but proving a change of circumstances is generally easier with a change to visitation, or parenting time. There still must be a good reason. That a parent simply wants more time with the child is not sufficient. To learn more, see How to Change Visitation in Tennessee.
Will a custodial parent’s misconduct lead to a custody modification in Tennessee?
In Tennessee child custody law, whether a custodial parent’s misconduct can lead to a custody modification will depend upon the individual circumstances of the case. A conviction for DUI or drug possession, for instance, will be considered more serious than hosting one party with a few intoxicated guests. Generally, a moral indiscretion or a minor legal problem will not suffice for a change of primary residential parent when the child is otherwise leading a normal, well-adjusted life. The impact on the child could be the central issue. If the child is unaware of the parent’s mistake or error in judgment, then this will be a mitigating factor. But if the child is being harmed by the parent’s conduct on an ongoing basis, then that could be enough to alter the current parenting plan.
What if after divorce, a Tennessee parent allows a boyfriend or girlfriend to spend the night in the child’s presence?
Upon request, under Tennessee child custody law some judges may order that neither parent allow a boyfriend or girlfriend to spend the night with the child in residence. Much depends upon the circumstances. How long has it been going on? Has the complaining parent also had repeated overnight romantic guests? The court will consider the circumstances and look for objective manifestations of harm to the child. When there are no objective problems suffered by the child, the primary residential parent is unlikely to be changed. Unless there is a specific harm involved, many judges are disinclined to order a change in primary residential parent. No parent should test the judge by intentionally violating the court order preventing a romantic partner from staying overnight when the child is present in the home.
What if a child doesn’t want to visit the other parent?
Whenever a child doesn’t want to visit the other parent, the situation is always a difficult one. Many children will tell the parent they are with that they do not want to visit the other parent. In fact, it is not uncommon for both parents to be told this even within a few days time. In Tennessee, the child’s wish for a change of child custody is not, by itself, a sufficient cause to do so. Even when the child’s feelings are very strong, his or her preference is but one factor to consider. For it is the responsibility of both parents (but especially the primary residential parent) to foster and encourage a meaningful relationship with the other parent. In some cases, frustrating parenting time by encouraging a child not to visit can be grounds for a change of primary residential parent or parenting time.
With an older son or daughter, the court will give more weight to the child’s preference. The court may question whether the child has been coerced or unduly influenced 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 by staying with the more permissive parent who lets the teenager run wild.
Will a court refuse to modify a custody determination within a short period of time following a recent court order or agreed parenting plan?
Under Tennessee child custody law, when parents recently agreed to a parenting plan, or a court recently ordered a parenting plan, judges are understandably reluctant to make a quick change unless there is a very, very good reason. A change of circumstances which materially affects a child’s well-being is required for a custody modification. That is often difficult to prove in such a short time, although not impossible. Is there something new that is known now, but was not known at the time the permanent parenting plan was entered? If the child cannot adjust to a new schedule and demonstrates some particular difficulty such as grades dropping dramatically, delinquency, or depression, most courts will determine whether a change is needed. Is the parent really seeking to retry the case or renegotiate? Then, most likely, the court will simply dismiss the case.
What are Tennessee custody laws for moving out of state?
Tennessee’s custody laws on a parent moving out-of-state with a child, also called a move-away or relocation case, are very complicated. Specific and timely notice of the move must be given to the other parent well in advance. This is so the other parent has an opportunity to file an action with the court and seek to block the move. There are strict requirements regarding notice. If the non-moving parent does not object, then the Tennessee parent can move away with the child. If the non-moving parent does object, then a complex set of laws apply. In very broad and general terms, if the moving parent has more than roughly equal time with the child and complies with the Tennessee Relocation Statute, if the move is not motivated by vindictiveness and is in the child’s best interest, then the court should permit it.
But if the moving parent has roughly equal parenting time, then the requirements are much more difficult. With equal parenting time, roughly 50/50, moving away over the other parent’s objection will cause the court to apply a series of tests and consider many factors.
Consulting an experienced Tennessee family law attorney well in advance of moving is strongly advised. A parent seeking to prevent the move often petitions the court to change the designation of primary residential parent. For more information, see the Tennessee Parent Relocation Statute Law | Modifying the Parenting Plan.
May a parent take a child from Tennessee temporarily, such as for a vacation?
Before a minor child of divorced parents is temporarily removed from Tennessee, the parent responsible for the child’s removal must inform the other parent of all addresses and telephone numbers where the child may be reached while away. It is always a good idea to be up-front in these situations. Provide cell phone numbers and a reasonably detailed itinerary to the other parent. See the non-custodial parent’s rights discussed previously.
Can a parent refuse visitation if child support is not paid?
No. Under Tennessee child custody law, a primary residential parent may not unilaterally deny visitation for non-payment of child support. Court-ordered visitation, or parenting time, may not be restricted, limited, or prevented by either parent without a court order. That is the law even when the other parent has willfully refused to pay child support. Visitation and Tennessee child support are two completely different legal issues.
In almost all circumstances, failure to pay child support is not a singular basis for terminating a parent’s right to parenting time, or visitation. This form of retaliation is never in a child’s best interest. In Tennessee child custody law, the child’s welfare is best served by spending time with both parents. One exception may arise when a parent abandons a child by never seeking to visit and consistently fails to pay any support over an extended period of time. In that instance, the non-visiting, non-supporting parent’s parental rights are at risk for termination – but only by court order.
To collect child support, there are other enforcement options. A few examples are filing a petition for contempt (seeking to put the non-paying parent in jail), cancelling state-issued licenses, or requiring the non-paying parent to collect trash (community service). For more information, see Tennessee Child Support Enforcement & Collection.
Can I stop paying child support if the custodial parent won’t let me see my children?
No. In Tennessee, enforcement of parenting time rights, or visitation rights, begins by requesting mediation or filing a petition seeking enforcement of such rights. Persistent violations of a court-ordered right to parenting time (or visitation) can be grounds for a change of primary residential parent. But if a parent has taken a child out-of-state and is hiding the child, then consult with an experienced Tennessee child custody lawyer. Under certain very limited circumstances, a parent hiding a child from the other parent who owes child support may be grounds for temporarily suspending a child support obligation.
In closing, 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. See the MemphisDivorce.com Tennessee Family Law Blog and its Child Custody category for Tennessee child custody updates, analysis, commentary, and case law summaries.
Tennessee Child Custody Laws in Divorce - Interview Part 1
Tennessee Child Custody Laws in Divorce - Interview Part 2
References, Resources and More:
- Tennessee Child Custody Laws
- Families – TN.gov
- Parenting Plan Forms | Tennessee Administrative Office of the Courts
- Court-Approved Divorce Forms | Tennessee Administrative Office of the Courts
- Office of Juvenile Justice and Delinquency Prevention: A Family Resource Guide on International Parental Kidnapping
- Tennessee State Courts: Parents’ Questions
- Child Custody and Support – American Bar Association