As a parent, if you are preparing to go through a divorce or separation – or if you have already separated from your former spouse or partner – gaining custody is understandably at the top of your list of priorities. Ensuring that minor children have a stable living environment is the fundamental principle underlying Tennessee’s custody laws as well. And whenever parents split, the law requires that custody be established in the “best interests” of the children involved.
As we have previously discussed, Section 36-6-106 of the Tennessee Code outlines 10 factors that must be considered when determining what is in a child’s best interests with regard to custody. But, does Tennessee law inherently favor either parent (particularly the mother)? Is it possible to obtain full (or “sole”) custody in Tennessee? What can you do to help tip the “best interests” factors in your favor? Here’s what you need to know:
What Do Tennessee Parents Need to Know about Child Custody?
1. Tennessee Law Does Not Inherently Favor Either Parent.
Section 36-6-101(d) of the Tennessee Code states, “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.” In other words, Tennessee law does not inherently favor either parent when it comes to establishing child custody. Both parents start on level ground, and it is up to each parent to demonstrate that he or she deserves a greater parenting time, if desired.
2. Obtaining Full Custody Is Unlikely Unless Special Circumstances Are Involved.
While full custody is an option, it is only an option in a very limited number of cases. There is a presumption that it is in a child’s best interest to spend time with both parents, and there must be special circumstances to warrant excluding one parent from a child’s life. As an example, Section 36-6-101(a)(2)(A)(ii) states that a parent generally should not be awarded custody if he or she has been convicted of a sex crime committed against a minor.
3. Traditional Custody-and-Visitation Schedules Are Becoming Less Common.
Twenty-five years ago, it used to be fairly standard for one parent (typically the mother) to have primary custody and the other parent (typically the father) to have “visitation” every other weekend. While this is still an option, it is becoming increasingly common for divorcing and separating parents to pursue alternative parenting arrangements. Today, 50/50 custody rights are not unusual, and many parents are pursuing co-parenting as well.
4. The Geographic Distance between the Parents, Post-Divorce or Separation, Is One of the Most-Significant Factors for Determining Child Custody.
Of all of the factors involved in determining child custody, the geographic proximity of the parents’ homes, post-divorce or separation, is easily among the most important. For example, if both parents will reside in the same county, this can significantly increase the likelihood of a 50/50 custody award.
5. There Are Steps You Can Take to Improve Your Chances of Gaining Your Desired Custody Rights.
Taking Tennessee’s “best interests” factors for child custody into consideration, there are steps you can take to improve your chances of gaining your desired custody rights (subject to the limitations discussed above). From gathering evidence of your involvement in your child’s life to making arrangements to help ensure that there are limited disruptions in his or her day-to-day schedule, the more you prepare, the greater your chances will be.
6. You Can Take Your Custody Dispute to Court if Necessary, But Amicable Resolutions Are Common Even under Contentious Circumstances.
If you and your spouse or partner cannot come to terms regarding custody, you may eventually need to go to court. However, there are alternatives (such as mediation) available, and even highly-conflict scenarios will often end with mutually agreeable outcomes.
7. Your Child’s Preferences May Be Relevant, But You Need to Be Extremely Careful about Getting Your Child Involved.
Tennessee law says that the child’s preferences are relevant if he or she is at least 12 years old – and potentially younger under appropriate circumstances. However, under no circumstances should parents attempt to influence their children’s preferences regarding custody. Seeking a child’s input requires careful planning and consideration, and it should only be done with appropriate professional guidance.
8. If You Are Dealing with a Situation Involving Domestic Violence or Substance Abuse, There Are Legal Protections Available.
If you are seeking full custody because your spouse or partner is abusive, there are legal protections available to you. Our attorneys can help you seek an emergency protective order, if necessary, and we encourage you to contact us immediately to discuss the options you have available.
9. If You Are an Unmarried Father, Your First Step Is to Establish Paternity.
As a husband, you are presumed to be the biological father of any child born during your marriage. However, if you are unmarried, then the first step toward gaining custody is to establish paternity. Once paternity has been established, your marital status is irrelevant and you can seek custody consistent with the best interests of your child.
10. If You Already Have a Custody Order, You Will Need to Prove a “Material Change of Circumstances” In Order to Seek Additional Parenting Time.
If you already have a custody order and you are seeking additional parenting time or to gain full custody of your children, obtaining a modification will require proof of a “material change in circumstances.” This can include a change in your child’s needs, a change in either parent’s living conditions or work schedule, or violation of your existing custody order by your former spouse or partner.
Request a Confidential Initial Consultation with a Tennessee Family Law Attorney
If you would like more information about seeking custody of your child or children in Tennessee, we encourage you to contact us for a confidential initial consultation. To speak with an experienced family law attorney at our offices in Clarksville or Springfield, please call 931-647-1501 or request an appointment online today.