In a Tennessee divorce, there are two types of custody that must be determined – legal and physical custody.   Physical custody is the responsibility of having the children live with you. The parent with whom the children are at the time has the responsibility for making day-to-day decisions about them. Day to day decisions include what the children eat and wear, who they play with and when they go to bed. Legal custody is the right to make important long-term decisions affecting your children's welfare. Long-term decisions made by the parent with legal custody may include the children's education, religion, and non-emergency medical care.

 

 Abolition of the Tender Years Doctrine 

One question that comes up regularly in my practice is do Tennessee courts prefer mothers to fathers when it comes to making a child custody determination?  The answer is that question is that a parent’s gender is not supposed to have an effect on the custody determination.  Tennessee state law states that no preference in a child custody determination shall be given based upon the gender of the parent.  However, that has not always been the case.

 

Prior to 2007 there was a legal principle called the “tender years doctrine” that presumed that during a child’s tender years (generally age four and under), that mothers are generally better suited to be the primary residential parent over fathers.  The tender years doctrine carried great weight in child custody determinations, particularly when the custody of young children was at issue.  Like many traditional notions that have given way as our understanding of human development evolves, the tender years doctrine was rooted in the assumption that mothers are simply more fit to care for children than fathers.  In Tennessee, the tender years doctrine has been abolished as Tennessee Code Annotated Section 36-6-101(d) provides that “It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.”  

 

Despite Tennessee legislation, the mother generally has an edge in custody litigation due to the gender bias that women tend to be “better caretakers”.  This generalization is not always correct, fair or right, but bias and preferences are a part of the world we are living in.  Each judge will have an individual preference.  Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce.  Custody cases are the most destructive litigation.  Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight.  Custody cases are expensive in both emotional cost and in legal cost.  The damage caused by winning a custody case is great; the damage caused by losing is terrifying.

 

Tennessee law now recognizes the equal importance of mothers and fathers in providing for the care and custody of their children.  Tennessee Code Annotated Section 36-6-106(a) provides that “the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child” consistent with the factors set forth in the best interest of the child analysis, such as the location of the residences of the parents, the child’s need for stability and all other relevant factors. 

 

The legal standard in deciding who will get custody is what is in the best interest of the children.  Every judge sees it differently.  If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody.  Some judges are more moderate, but the father is usually at a disadvantage.  If the court takes custody away from the mother, it usually has a good reason.

 

Joint custody will usually be approved by the court if the parties do so by agreement.  The primary custodian is the one the child primarily lives with and has final decisions on issues such as school, medical care, and other issues.  By agreement one parent can be responsible for some areas and the other parent can be responsible for other areas.  Joint custody is more rarely awarded in contested cases. 

 

 

If there is custody litigation, you must be able to show the judge that the child is better off with you.  Photographs of you and your child having a good time doing things together is useful evidence.  It is good to subscribe to publications such as Parents magazine.  Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature.  Do these things for your child and yourself, not just to impress the judge.

 

How is child custody determined in a Tennessee divorce?        

The criteria for determining custody are set out in a statute, T.C.A. 36 – 106.  They include the following:

• 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 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 best interests of the child; 

• 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 these 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 who has taken the 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 each parent's ability to parent or 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 the child's 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 interactions with the child;

• The reasonable preference of the child if 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 those 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.

 

Parenting Plan

The Parenting Program was adopted in Tennessee.  The Tennessee Parenting Plan Statute  require divorcing spouses to file a “Temporary Parenting Plan” which sets forth various issues from custody to parenting time, to child support, to vacations.  See Parenting Plan Form in the Appendix for a copy of a Parenting Plan. You will need to fill out a temporary parenting plan that deals with parenting issues that will arise between now and the final divorce. The parties can agree to this plan.  If it is not a “joint plan” then the court can order alternative dispute resolution methods such as mediation.  See the section on mediation and other alternatives to trial.  If an agreement is not possible after mediation then you must file a verified temporary plan with a statement of income and the judge must hear proof and set the plan as the judge sees fit.

 

In evaluating competing parenting plans, the judge will use the criteria above and 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 and each parent’s employment schedule. 

 

There is a provision in the law for restricted visitation and exemption from mediation in cases of spousal or child abuse.  Behaviors that can trigger restrictions include:

 

• willful abandonment, or substantial refusal to perform parenting responsibilities;

• sexual abuse;

• pattern of emotional abuse of the parent, child, or of another person living with that child;

• emotional or physical impairment;

• drug or alcohol abuse;

• substantial impairment of emotional ties with child;

• abusive use of conflict;

• past withholding of visitation without good cause;

• criminal conviction; or

• other relevant conduct.

 

Child Visitation

 If the mother and father can agree on visitation, the court will usually approve the plan.  The best plans usually maximize the parent’s time with the children.  You need to consider everyone’s schedule, school time, outside activities, sports, church, vacation, and the fact that as the children become teenagers they will have a life of their own and will usually prefer to be with their friends rather than either parent.  A typical pattern is alternating weekends, a few weeks in the summer, and alternating holidays.  If the parties live far apart, this pattern will not work.  The pattern then calls for fewer but longer visitation periods.  If the parties live far apart, you must deal with who will provide or pay for transportation.  Psychologists, judges, and I encourage visitation except in extraordinary circumstances.  Try to keep the other parent involved in school activities and other events.

 

Sometimes when parents fight about visitation, they are really upset about something else that they do not believe they can fight about.  It may be because they feel angry at the other spouse for leaving or it may be that they feel they gave up too much in the divorce settlement.  But for whatever reason, they are involved in an argument about the children.  It can be the custodial parent wanting to restrict the other’s visitation.  This is normally not a good idea, because when the custodial parent says to the other, “I don’t want you to visit at this time,” that immediately becomes the time that the other parent wants to visit with the child. 

 

In some cases the problem is that the custodial parent wants the noncustodial parent to visit and they will not do so because the custodial parent is trying to force the other to visit with the children.  The best thing to do if you do not want the noncustodial parent to visit is tell them you want them to visit.  Bury the other with visitation, and remember in the back of your mind that they are a free babysitter.  Also, you might remember that the noncustodial parent who visits regularly tends to be a parent who pays support regularly.

 

Even if your situation is that the noncustodial parent is a jerk, and you do not think it is the best thing in the world for the kids to be around the jerk, you still need to encourage visitation.  The children need to know that the noncustodial parent is a jerk, and the best way for them to know it is to let them see it with their own eyes on a regular basis.  Withholding visitation from the children or the noncustodial parent pits you against the child’s imagination.  If the children do not see the jerk, they soon forget what a jerk he or she is and begin to blame you for the noncustodial parent’s having left.  The child’s imagination is then on the other parent’s side.  The children dream about a perfect parent; and since they do not see the absent parent they do not see any flaws in that parent.  You might overcome many things, but you will have a hard time overcoming your child’s imagination.

 

If the litigation gets very bitter, the court may threaten to place the children with someone other than the parents.  However, the parents must be shown to be unfit before the children will be given to someone else.  The children may need their own lawyer.  This is a Guardian Ad Litem.  The Guardian Ad Litem is appointed by the court to look after the best interest of the children.  Appointment of a Guardian Ad Litem will add significantly to the cost of your case.  Please refer to the Visitation Statute in the Appendix for the exact wording of the Tennessee visitation statute.

 

Mandatory Parent Educational Seminar

In Tennessee, both parents will be required to attend the four hour Parent Educational Seminar as soon as possible after the filing of the complaint for divorce.  The seminar educates parents concerning how to protect and enhance their children’s emotional development.  It also informs the parents about the legal process.  In addition, the course also includes discussions on alternative dispute resolution, marriage counseling, the judicial process, and common perpetrator attitudes and conduct involving domestic violence.  The seminar is educational in nature and not designed for individual therapy.  Your minor children will not be allowed to attend the parent educational seminar.  A list of the approved Parent Educational Seminar providers may be found by clicking on the following link: Approved Parent Educational Seminar Providers. Failure to participate in these programs can lead to a party being found guilty of contempt of court. Please see the Parent Educational Seminar Statute in the Appendix for the exact wording of the parent educational seminar statute.

                                               

Special Considerations

            It is never a good idea to move out of the marital residence prior to having an agreed upon parenting plan.  However, if you must leave the marital home consider taking the children with you if you have been the primary caretaker of the children and the other parent does not object.  Continuity of placement is a factor for the court, and if the children do well in your custody, it works to your favor.  Leaving in a different home can create distance in your relationship with your children.  Remember to do your best to stay close to your children. 

 

            It is ideal that you use your visitation time with them for their enjoyment and development.  Take them to interesting places like museums, parades, church, and appropriate movies.  Have someone (not a boyfriend or girlfriend) take pictures to show the court.  Be involved in their school.  Get copies of report cards, tests, and anything else you get from the school.  Also, it can be beneficial for you to keep a calendar or journal of significant events.  You will likely forget details over time if you do not have detailed a record.  However, you need to be careful of what you write.  These documents often end up in court and the other side will cast the worse possible light on anything you write.  This is not where you vent your anger at your spouse.