Tennessee family law courts encourage parents to work together to come up with a custody and visitation schedule that will be in the best interests of the child. When parents cannot work out an agreement, a Tennessee court must decide. In Tennessee, family law courts decide two aspects of custody. These are traditionally known as legal custody and physical custody.
In Tennessee, instead of awarding a parent legal custody, the court designates one parent as the “primary residential parent.” This parent will make most of the decisions impacting the child’s health and well-being, including education. While both parents may enjoy decision-making authority over the child, the primary residential parent has ultimate decision-making authority. They can break a tie should the parents disagree. In addition to allocating decision-making authority, a Tennessee court will award each parent physical custody, or “parenting time.” Other states refer to parenting time as “visitation.”
Neither parent is automatically entitled to either type of custody. Depending on the specific circumstances of one’s case, a Tennessee court may award one parent with 100% decision-making authority. That same parent may exercise 365 days a year of parenting time, or parenting time may be divided 50/50. Everything must be determined based on what will be in the child’s best interest.
What Is the Best Interest of the Child?
Tennessee Code Annotated section 36-6-106 provides that when a court is determining what is in a child’s best interest, a court shall consider all relevant factors, including 15 factors enumerated in the text:
- The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed most parenting responsibilities relating to the daily needs of the child;
- Each parent’s performance of parenting responsibilities, including 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;
- Whether either parent has refused to attend a court-ordered parent education seminar;
- The ability 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 moral, physical, mental, and emotional fitness of each parent as it relates to their ability to parent the child;
- The child’s relationship with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with their 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.
- Whether there is evidence of physical or emotional abuse to the child, to the other parent or to any other person;
- The character and behavior of others who reside in or frequent the home of a parent and their interactions with the child;
- The reasonable preference of the child if 12 years of age or older;
- Each parent’s employment schedule; and
- Any other factors the court deems reasonable.
The court will weigh these factors and determine which weigh in favor of which parent.
What Is the Reasonable Preference of the Child?
It is important to note that the statute only requires courts to hear the reasonable preference of a child 12 years and older. It does not state that a child 12 years or older gets to decide where they want to live. Children don’t get to decide until they reach the age of 18 and are no longer under the family law court’s jurisdiction.
When parents cannot agree, it is up to a court to weigh the various best interest factors and determine how much deference to afford a child’s stated preference.
Generally, a child will testify in court or before the judge in their chambers about who they want to live with and why. Tennessee family law courts are vigilant to parents’ attempts to use the child as a pawn to exact revenge on the other parent. Accordingly, a Tennessee court may take a parent’s bad faith coaching of the child into consideration when awarding custody rights and parenting time.
Is a child allowed to choose which parent to live with? Ultimately, it’s the court’s decision. However, a Tennessee court will give due consideration to a mature and well-thought-out basis for preferring to live with one parent over the other.
Rely on an Experienced Tennessee Family Law Firm
Custody cases can be complex and fraught with emotion. At Batson Nolan PLC, we understand how much you have on your mind and the value of professional support and guidance when making decisions that will impact your child. If you have questions about your child’s ability to express their reasonable preference regarding which parent to live with, contact our office today for a free consultation. We are happy to speak with you and can offer insight on the best steps going forward to protect your child’s best interests.