Child Custody

No aspect of family dissolution is more daunting or heart wrenching than the issue regarding child custody. How much time will you have with your child(ren) after the divorce? Who will have authority to make major decisions for your child(ren)? Where will your child(ren) live? Successful resolution of such matters is paramount to the future happiness and well being of you and your child(ren). The Nashville child custody attorneys at Cole Law recognize the impact that the determination of child custody will have on you and your family, and we will treat your case from beginning to end with the compassion and diligent representation that it so justly deserves.

How Can I Get Sole Custody of My Child?

Winning sole custody over the other parent is usually not the best objective on which to base the strategy of your case. However, a sole custody arrangement or termination of parental rights can be granted under extenuating circumstances. A parent that is granted sole physical custody is typically referred to as the custodial parent. The noncustodial parent may have visitation rights agreed upon by the parties or determined by the court. Sometimes, visitation may be supervised if the parent has a history of problems such as violence or substance abuse.

Family courts in the Nashville area adhere to the belief that it is essential for a child to have an ongoing relationship with both parents, that both parents should exercise parenting with the child(ren), and that both parents should be involved in parenting decisions. Even the 14th Amendment of the Constitution affords each party a fundamental right to have access to, care for, and educate his or her child(ren). This is also true if the parents are unwed, if paternity has just recently been established, or if a child has been legally adopted.

What Is “Shared Parenting” or “Joint Custody”?

An arrangement in which each party has a fundamental right to have access to, care for, and educate his or her child(ren) is currently referred to as shared parenting or joint custody. Be aware that the term shared parenting does not mean equal time with your child)ren).

Does a “Primary Residential Parent” Have the Child(ren) Most of the Time?

Yes. The parent with whom the child(ren) will live more than 50% of the time is referred to as the primary residential parent. The alternative parent will likely have the child(ren) in residence on weekends or alternate weekends, holidays, and special events.

How Is Division of Time Between Parents Determined?

Division of time between parents is determined by a court ordered permanent parenting plan, a written outline that will (1) establish a primary residential parent; (2) allocate authority to one or both parents to make decisions regarding education, health care, and religious upbringing; (3) provide that either parent may make day-to-day decisions for the child while the child is residing with that parent; (4) minimize parental conflict; (5) provide for a child’s changing needs; and (6) allocate financial support for the child. A court can award temporary custody while a parenting plan is pending.

Can Both Parties Mutually Agree to a Permanent Parenting Plan?

Parents do have the opportunity to amicably agree to a parenting plan. Such mutual cooperation is encouraged by our Cole Law child custody attorneys because it eliminates the need for judicial intervention and alleviates the stress and expense of a custody trial. Although parental decisions regarding custody are not binding on Tennessee courts, even when both parents agree on the decision, Tennessee courts rarely question a custodial arrangement both parents agree upon. Nevertheless, regardless of whether the parents agree upon a parenting plan for their minor child(ren), in the end it is the judge–not the parents–who decides the issue of child custody.

What Happens if the Parents Cannot Agree on a Parenting Plan?

If the parties are unable to resolve parenting issues, the court will more than likely require them to attend mediation in order to reach an agreement. If mediation fails, and the parties cannot reach agreement on a permanent parenting plan on or before forty-five days prior to trial, each party must file a proposed parenting plan which includes a verified statement of income, a verified statement of good faith, and a verified statement that the plan is in the best interest of the child.

What Does the Court Consider in Making a Custody Determination?

Tennessee law explicitly states that, in any proceeding requiring the court to make a custody determination regarding a minor child, the determination must be made on the basis of the best interest of the child.1 Additionally, the law states that in taking into account the child’s best interest, the court must order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors enumerated by statute, the location of the residences of the parents, the child’s need for stability, and all other relevant factors.2

Under Tennessee law, the trial judge is vested with significant discretion in deciding the issue of child custody and fashioning a parenting plan setting forth the parents’ custodial arrangements. When determining the issue of child custody, Tennessee courts consider all relevant factors, including the following, where applicable:

• The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
• 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. When considering this factor, the court must consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court must consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
• Refusal to attend a court ordered parent education seminar (which may be considered by the court as a lack of good faith effort in the 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 moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child;
• The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, 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;
• Whether a parent has failed to pay court-ordered child support for a period of three (3) years or more; and
• Any other factors deemed relevant by the court.3

As a result of the numerous and wide-ranging statutory factors enumerated above pertaining to child custody determinations, the trial judge exercises a great deal of discretion in any case involving a child custody determination. Moreover, and very importantly, it is critical in any contested family law case for the parent requesting the court to adopt his or her proposed custodial arrangement to present ample, relevant evidence regarding each of the applicable factors enumerated above supporting why it is in the best interest of the minor child to adopt that parent’s proposed custodial arrangement instead of the other parent’s proposed custodial arrangement.

Although the statutory factors listed above must be considered by the trial judge in Tennessee courts making an initial child custody determination pertaining to a minor child, there is much more substantive law applicable to initial child custody determinations that is beyond the scope of this article. Nevertheless, the determination of child custody is of paramount importance in any divorce or family law case, and the court’s decision on the issue of child custody will likely have extremely significant consequences that can impact your life and the lives of your children for many years to come.

Your First Step Is Choosing the Right Attorney

If you are currently experiencing a divorce involving one or more children, or if you are experiencing a custody dispute with the parent of one or more of your children even though you never married the other parent, you should seek the legal advice of a knowledgeable and experienced family law attorney immediately. At Cole Law our child custody attorneys are skilled and determined litigators who will assert your position and defend your rights in mediation or in a court of law. Call our Brentwood office today at 615-490-6020 to schedule a consultation and learn more about how Tennessee law surrounding child custody may impact you.

¹ Tenn. Code Ann. § 36-6-106(a).
² Tenn. Code Ann. § 36-6-106(a).
³Tenn. Code Ann. § 36-6-106(a)(1)-(16).