Family Law Issues
How is custody of a child decided in Tennessee?
You and the other parent are first given the opportunity to agree to custody and visitation provisions. If a consensus cannot be reached between the two of you, then Tennessee courts will decide who is the Primary Residential Parent (PRP) having the minor children in their household over fifty percent (50%) and who is the Alternate Residential Parent (ARP) having the minor children for “visitation”. The judge uses the best interest of the children as the basis of determining the PRP based on the ten (10) child custody criteria. Once the PRP is determined, the judge is then required to maximize the parenting time with the ARP.
What’s the difference between sole and joint custody?
In Tennessee, the terms custody and visitation are no longer used. The correct term for “custody” or “custodian” is Primary Residential Parent (PRP). The correct term for the “non-custodial parent” is Alternate Residential Parent (ARP). In every case where both parents have time with their children, the parents are said to have “joint custody”. If for some reason one of the parents does not have any parenting time, the PRP is said to have “sole custody.”
Does Tennessee Custody Law use “parenting time” or “visitation?
Under Tennessee Child Custody Law, the term “parenting time” is used, and it refers to the residential schedule of the minor children at the Alternate Residential Parent’s (ARP) home. The old term for parenting time is “visitation.”
What is a Parenting Plan? Are parenting plans required for all child custody cases in Tennessee?
A Permanent Parenting Plan (PPP) is required for all Tennessee divorces cases involving child custody. A PPP addresses ALL issues regarding the minor child including who is the Primary Residential Parent, setting forth the parenting time of the Alternate Residential Parent (ARP), and setting child support in accordance with the Tennessee Child Support Guidelines. The PPP covers regular parenting time, i.e. every other weekend or week to week, holiday parenting time, and summer parenting time. Generally, parents work together to come up with a PPP that is in the best interest of the minor children; however, if they are unable to reach an agreement, the judge will make the decisions and name the PRP, set the parenting time of the ARP, and set child support based on the Guidelines.
How will Tennessee courts decide child custody in a divorce case?
When parents cannot agree on the terms of their child custody case, the judge is required to make findings and name a Primary Residential Parent (PRP), set a parenting schedule for the Alternate Residential Parent (ARP), and set child support in accordance with the Tennessee Child Support Guidelines. The judge is required to look at ten (10) Tennessee child custody factors set forth in the child custody statute in naming the PRP, and make a determination of the child’s best interest:
(1) The love, affection and emotional ties existing between the parents or caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7) (A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
(10) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability 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, consistent with the best interest of the child.
After the judge names the PRP, the next requirement is to set the parenting time of the ARP. In setting parenting time of the ARP, the court must make all effort to maximize the other parent’s time with the minor child. After the number of days with each parent are determined by the court, child support is set in accordance with Tennessee Child Support Guidelines.
What can I do to get custody of my child in Tennessee?
This is the $64 Million Dollar question. The answer varies from case to case, and is a question for the Tennessee divorce and child custody lawyer that you hire. Knowing that the standard in a child custody case is “the best interests of the child” and the sixteen (16) custody factors, your child custody lawyer is the best resource to give advice for “winning custody” at your divorce trial. With all that said, if you are doing something bad, STOP NOW! If you need to “clean up your act,” now is the time if you want to win custody. The court is required to name the Primary Residential Parent (PRP) between you and the other parent; you are judged only against the other parent, not judged against perfection!
Do Tennessee courts give preference to mothers in child custody cases?
No. Tennessee’s historical presumption of “tender years” of young children used to almost guarantee mothers custody in a child custody case. If a child were an infant of “tender years,” the court favored the mother during a child custody trial. The tender years doctrine has been abolished, and the gender of a parent is no longer a consideration in custody determination.
Is determination of the Primary Residential Parent (PRP) permanent?
No. Determination of the PRP is based on information available to the judge at the time the PRP is made. If a judge names a parent as the PRP, this does NOT mean that parent will be the PRP until the child becomes eighteen (18). To the contrary, if that parent does not do a good job rearing the child, the other parent can seek to be named the PRP by showing a material change of circumstances and that it would be in the best interest of the minor child for that parent to be named the PRP.
How old does a child have to be to legally choose which parent he wants to live with?
A child’s preference is always highly considered in any given Tennessee divorce or child custody case. However, children age twelve and older (12+) may testify and state a parental preference which must be considered by the judge. Children under the twelve year age limit can testify at trial and may voice a parental preference. Merely stating a parental preference does not mean that the child will live with the parent preferred; the court must still make a finding that living with that parent is in the best interests of the minor child. In a modification of child custody proceeding in Tennessee, merely turning twelve (12) and wanting to live with the other parent is not enough; there must be some material change of circumstance other than the desire of the minor child to live with the other parent.
Does child custody in Tennessee have any effect on child support payments?
Yes. Child support in Tennessee is calculated based on the Tennessee Child Support Guidelines. These Guidelines require that the number of days the minor children spend with each parent be input into the child support calculator. The two (2) most common arrangements are “standard visitation” and “shared parenting”. Standard visitation is normally 285 days for the Primary Residential Parent (PRP) and 80 days for the Alternate Residential Parent (ARP); shared parenting is 182.5 days for each parent. As the amount of time with the minor children is increased, it will reduce the amount of child support owed under the Guidelines.
If a parent fails to pay child support, can I legally deny visitation?
No. There is ABSOLUTELY NO connection between failing to pay child support and right to exercise visitation. The proper response when a parent refuses to pay child support is to file a Petition for Contempt. On the other hand, failing to make the minor children available for parenting time with the other parent can result in a Petition for Contempt being filed against YOU! A finding of guilt for contempt is up to ten (10) days in jail and a fine of up to Fifty Dollars ($50.00) for each violation of the court order. Judges take their orders seriously, and have no problem putting both parents in jail for playing this child support-child visitation game.
What are grand parents rights under Tennessee Law in child custody cases?
Cases in which grandparents seek some time with grandchildren are limited under Tennessee Grandparent Visitation Law. Generally speaking, if parents are married, there are no grandparent visitation rights. If the parents are divorced or unmarried, the visitation rights are weighted greatly in favor of the biological parents against the grandparents. An exception to this general rule would be circumstances in which a parent is having considerable negative effect on a child’s living situation, or neglecting to provide adequate support to his or her child. In the case of a biological parent who is deceased or not in the minor child’s life, grandparents can obtain visitation providing that they have had a relationship with the minor child and it would be in the best interest of the minor child.
What is a pendente lite custody and child support order in Tennessee?
Usually when the Complaint for Divorce is filed, there is a request made for pendente lite parenting time and to set pendente lite child support. There is either a Show Cause Order or a Motion for Pendente Lite Support and Parenting Time filed by the lawyer. A pendente lite custody and child support order is a temporary, or pendente lite, order that is in place until the divorce trial. This is a great opportunity to see what the judge thinks about the case initially, and can set the tone for the divorce case. Generally speaking, pendente lite court orders cannot be modified until the final hearing. At the final hearing, each party has the opportunity to put on proof as to whether the pendente lite order should remain in force or whether it should be changed.
What is an “ex parte order” in Tennessee?
An “ex parte order” is a temporary order issued by the judge without considering the other side’s position. These ex parte orders occur in rare situations during the pendency of a case, but are common when a case is filed initially. Circumstances that justify ex parte orders include those involving physical, mental or emotional harm or mistreatment of one parent by the other. The most common “ex parte order” involves restraining and prohibiting removing the minor children from the marital home or from the physical possession of a parent. Courts want to keep the status quo during a divorce, and often an ex parte order is designed to keep things the way they were before the divorce was filed.
Can my spouse leave Tennessee with our child?
It depends. If the parties are married, either parent may leave the state with the minor child before a divorce case is filed. After the divorce case is filed, the Statutory Injunction is in effect, and it prevents either party from removing the minor child from Tennessee or 50 miles from the marital home. Tennessee law does not permit either divorcing parent to move to another state if the divorce is pending. At a final child custody hearing, the court can hear evidence on whether it is in the best interest of the minor children to move out of state with one parent. To move out of state, Tennessee courts are required to follow the Tennessee Move Away Law.
When does a court order “supervised visitation” or “supervised parenting time”?
There is a federal and state constitutional right to visit with a person’s minor children. Unfortunately, some parents engage in certain activities that are inherently dangerous to expose a minor child. When a court is concerned with the behaviors of a parent, the court will often order that any parenting time be supervised. Examples of supervised visitation include parents with history of alcohol abuse, drug usage, domestic violence/anger issues, and child sexual abuse. Often, a Guardian ad Litem (GAL) is appointed in cases wherein supervision is a possibility.
What is a Guardian ad Litem in Tennessee Child Custody cases?
A Guardian ad Litem (GAL) is an attorney appointed by the court to represent the best interest of the minor child. The best interest of the minor child can be different from what the child wants. In that event, there can be an Attorney ad Litem appointed by the court to represent what the child wants. The parties must pay for the services of the GAL, and because the GAL is an attorney representing an interest in a child custody case, the GAL must be in agreement with the decisions of the parents. In certain cases, the GAL will NOT be in agreement with the wishes of the parents, and the case must go to trial. Based on these considerations, a GAL may not be advisable in certain custody disputes.