How is child custody determined in Tennessee?


What rights does a father have in Tennessee? Is a mother more likely to be granted primary residential parent status in Tennessee custody law? Is Tennessee a mother or father state? What are the child custody laws in Tennessee? How does a Tennessee judge determine what’s in the child’s best interests? How will a Tennessee custody case proceed in court?

Tennessee Child Custody Laws

How is child custody determined in Tennessee law?  Most importantly, the court focuses on the best interests of the child and parental fitness.  The primary objectives in a custody case are:

  1. To do what’s best for the child;
  2. To assert both parents’ right of access to the child;
  3. And to prepare for shared custody.

With shared custody, the child is raised in separate households under a court-ordered permanent parenting plan.

What rights does a father have in Tennessee?

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.

What rights does a father have in Tennessee?

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!

Fathers have the same right to participate in the lives of their children as mothers regardless of whether or not the parties were married when their child was born.  In Tennessee, non-custodial parent is a commonly used term imprecisely describing the alternative residential parent, or “ARP.” The parental rights in Tennessee 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.” Here is a shortened summary if rights listed for both parents pursuant to Tennessee Code Annotated Section 36-6-101(a)(3):

  1. The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations.
  2. The right to send mail to the child which the other parent shall not destroy, deface, open or censor.
  3. 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.
  4. The right to receive directly from the child’s school any educational records customarily made available to parents.
  5. The right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider.
  6. 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.
  7. 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.
  8. 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.
  9. 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.

Is a mother more likely to be granted primary residential parent status in Tennessee custody law?

Is a mother more likely to be granted primary residential parent status in Tennessee custody 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.

Is Tennessee a mother or father state?

Is Tennessee a mother or father state?

Neither.  Some fathers’ rights activists may say it is a mother state because Tennessee does not have an equal parenting time presumption.  An equal parenting time presumption exists in many states, requiring judges to assign parents equal parenting time unless the judge finds a serious reason not to order equal time.  Keep in mind, shared parenting is a vaguely defined term.  Tennessee does award shared parenting, both parents can share parenting time and responsibilities.  Some writers seem to equate shared parenting with equal parenting, but that is not a legally defined term except on a state-by-state basis.  Keep in mind Tennessee Code Annotated § 36-6-106(a) requires Tennessee courts to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child.”  In recent years, the Tennessee Court of Appeals has been using this provision to justify more time for fathers and mothers alike.  That being said, this phrase has not been interpreted to create an equal parent time presumption.

In Tennessee custody, the parents’ first goal should be agreeing on a parenting plan.

When parents negotiate and agree on a parenting plan, there’s no further need for judicial intervention. Settlement is how parents control their custody arrangement. And if there’s no agreement? If parents disagree on who should be the primary residential parent, or PRP, then the judge must decide for them. Because custody is contested. A contested custody case goes through each phase of civil litigation.

Preparing for a custody trial is intense. Always keep one goal in mind. Developing a permanent parenting plan that works well for you and your child.

What are the child custody laws in Tennessee?

Your litigation strategy is tied to Tennessee’s child custody factors. So they’re easier to digest, we’ll simplify and paraphrase Tenn. Code. Ann. § 36-6-106.

Here are 10 key custody factors the court will consider:

  1. What love, affection, and emotional ties exist between parent and child?
  2. How disposed is a parent to providing food, clothing, medical care, education, and necessaries for the child? And to what degree did the parent act as primary caregiver?
  3. Because continuity in a child’s life is important, what’s the length of time the child has lived in a stable, satisfactory environment? Note: Any child abuse which caused the non-perpetrating parent to flee and relocate with the child cannot weigh against an award of custody to that parent.
  4. How stable is a parent’s family unit?
  5. What is the mental and physical health of a parent?
  6. What is the child’s record in the home, school, and community?
  7. Is the child 12 years old or older? Then what is that child’s reasonable preference for primary residential parent? Note: The judge has discretion to hear a younger child’s preference, too.
  8. Is there evidence of physical or emotional abuse of a child? Is there domestic violence in the parent’s home? Note: Evidence of abuse against a family member may involve additional court proceedings.
  9. What character, behavior, and interactions go on with someone else living at the parent’s home or frequenting the home?
  10. What were each party’s past parenting duties and the potential for future performance of responsibilities? This includes a willingness and ability to facilitate and encourage a close and continuing relationship between the child and both parents. This should be consistent with the child’s best interests. The primary residential parent should foster and encourage a meaningful relationship between the child and the other parent.

The last factor is a parent’s ability to “instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.” Tenn. Code Ann. § 36-6-404.

How does a Tennessee judge determine what’s in the child’s best interests?

How does a Tennessee judge determine what’s in the child’s best interests?

How can a stranger come up with an arrangement allowing both parents maximum participation in the child’s life? By applying the statutory custody factors to the evidence. What does the residential schedule look like? Every permanent parenting plan has a residential schedule. One that’s consistent with the child’s developmental level and the family’s social and economic circumstances. Scheduling should encourage both parents to maintain a loving, stable, nurturing relationship with their child.

Will experts or professionals be needed in the case? Various experts and professionals can help the court determine what’s in the child’s best interests. They serve as guardians ad litem, mediators, independent forensic child custody evaluators, and parenting coordinators.

The judge may appoint a guardian ad litem for the child.  This is to ensure the child’s best interests are adequately protected.

Mediation is standard in Tennessee child custody cases.

The mediator’s goal is to assist the parents in reaching mutually acceptable agreements. The typical mediator is a lawyer or retired judge. Mediators facilitate agreements only.  All mediators are required to stay neutral and should never pick a side to favor.

An independent forensic child custody evaluator is an expert witness and mental health professional. This evaluator assists the court in determining what’s best for the child.

A parenting coordinator assists parties in implementing their parenting plan. These are high-conflict cases that need additional help. The coordinator is typically a mental health professional or family lawyer.

How will a Tennessee custody case proceed in court?

How will a Tennessee custody case proceed in court?

Here’s an overview of the steps involved.

Is there jurisdiction over a spouse?

In a divorce, one spouse must be a six-month resident of Tennessee. If the spouse is a service member stationed here for a year or longer, then residency is presumed absent clear and convincing evidence to the contrary.  If there is a question, check with an experienced family lawyer because the laws on jurisdiction can be very complicated.

Discovery

Discovery involves information gathering and exchanges between parties.

It’s part of every civil lawsuit that doesn’t quickly enter settlement negotiations or abruptly end with dismissal.  Expect interrogatories, requests for production of documents, requests for admission, subpoenas, depositions, and physical or mental examinations.

Parent Education Class

Parents must attend a seminar on the impact divorce and custody can have on minor children. A certificate of completion needs to be filed with the court.

Check with your local court clerk or your attorney for a list of approved classes.  Depending on the court and circumstances, some classes may be available online.

Tennessee Custody Parenting Plan

There’s two ways this can come about.  Either the parents agree on a plan, or the judge decides for them after applying the custody factors to determine what’s in the child’s best interests. The result will be a permanent parenting plan made a court order upon approval and execution by the judge. The form for the permanent parenting plan is available from the courts.

What’s in the permanent parenting plan?  This written document represents the parents’ agreements regarding child custody. The plan includes a parenting time schedule for residential time. This schedule typically details where the children will reside during the week and on weekends. And which parent will drop them off and pick them up from daycare, school, and extracurricular activities. There’s also a schedule for holidays, summer vacations, and special event days. The plan states whether one parent will have final decision-making authority or both will share that authority.  That authority may depend on the type of decision to be made.

It also states who will be the primary residential parent and who will be the alternate residential parent.  There are also options now for the parents to share authority or avoid stating final decision-making authority.

If you have specific co-parenting concerns, discuss them with your experienced family law attorney.  There are often ways to include provisions to help clarify and avoid foreseeable problems.  Experienced family lawyers are very good at helping draft provisions both parents may agree upon.

Will there be temporary custody orders?

Yes, if requested by either parent and the judge agrees to consider a temporary parenting plan be entered. A permanent parenting plan under final orders is distinguishable from a temporary plan under interim orders. Temporary orders are only effective while the case is ongoing.

Tennessee Custody Mediation

Mediation is mandatory in all child custody cases before a trial can be held. The judge may order parents into mediation, but cannot make them reach agreement. Mediation is a voluntary process.  As a general rule, it’s always best to mediate first and litigate second.

Tennessee Custody Trial

A custody trial requires substantial preparation by your attorney. Both parents are required to submit to the court their proposed permanent parenting plan for the judge’s consideration. Only relevant evidence is admitted at trial.

  • There will be social media evidence, such as the parents’ Facebook posts.
  • There will be lay witness testimony from those who know the child or the family, such as a neighbor or coach.
  • There will be expert witness testimony, such as an independent forensic child custody evaluator.
  • And there will be your child’s wishes for custody, assuming the child’s old enough to give a preference.

At trial, your attorney will present your case in the most positive light possible.

Final custody decision

With all the evidence in and both closing statements made, then the judge makes a final decision on custody. The judge enters a permanent parenting plan order and original child support order. Those orders are binding on both parents from that day forward.

What if parenting circumstances change or things don’t work out?

Under limited circumstances, a parent may ask the court to modify its orders.  This is because the court has continuing jurisdiction over child custody. You’ll need a legal strategy to modify child custody or child support orders, too. Talk to your attorney.

Reference, Resources and More:

Copyright © 2021 Miles Mason Family Law Group, PLC   - Disclaimer