Child Custody and Visitation in Tennessee

Child custody laws in Tennessee focus on the best interest of the child and, by extension, the comparative fitness of each parent.  What this means is that, absent some exceptional facts (like one parent being an illegal substance abuser or having a criminal record), the parent who can persuade a judge that the child’s best interest will be served by residing primarily with them will “win” custody.  Read on to see why it is so crucial to get and experienced family law attorney in Columbia, TN on your side before engaging in any child custody battle.

“Best Interest of the Child” in Tennessee Custody Determinations

So how does a parent show a judge what is in a child’s best interest?  The Tennessee state legislature has instructed judges what to look for when making an initial custody determination.  First, courts must order a co-parenting schedule that allows both parents to enjoy the maximum participation possible in the lives of their children.  However, this “maximum participation” doesn’t mean that every parent gets 50/50 visitation.  A parent’s time with their child is maximized subject to what is best for that child.

Here’s an example to illustrate this sometimes-confusing point:  Let’s say the parents of a child who attends an elementary school in Columbia, Tennessee decide to get a divorce.  Both parents are perfectly equal in their ability to take care of the child.  In this situation, a judge is very likely to order a 50/50 parenting schedule.  However, what if while the divorce is pending, one parent takes a job in Knoxville.  Obviously, despite being on equal footing in their parenting abilities, no judge will ever order equal parenting time in this situation.  Doing so would be logistically impossible in that it would require the child to somehow attend school in one city, despite waking up in a city 4 hours away half the time.

A judge could very likely determine that the child needs to stay in Columbia as that is the environment the child is familiar with and the judge wants to maintain stability for the child.  After determining this, a judge could decide that the parent who now lives in Knoxville will have the majority of summer and holiday breaks with the child in an effort to maximize that parent’s time while still keeping the child in Columbia during the school year.

Here is the key takeaway:  A judge does not primarily determine who is a “good” parent and who is a “bad” parent.  Instead, a judge determines what is best for a child by applying the facts heard in court to the “best interest” factors listed by the legislature.  After determining what is best for a child, the court then maximizes each parent’s time with the child accordingly.

These factors are listed in Tennessee Code Annotated § 36-6-106.  In addition to the location of the residences of the parents and the child’s need for stability, the law instructs courts to look at “all relevant factors” including:

  1. The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
  2. 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. In determining the willingness 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, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  3. Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
  4. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  5. 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;
  6. The love, affection, and emotional ties existing between each parent and the child;
  7. The emotional needs and developmental level of the child;
  8. The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
  9. 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;
  10. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  11. Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
  12. 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;
  13. 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;
  14. Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  15. Any other factors deemed relevant by the court.

How to Win a Custody Battle in Tennessee

As you can see above, the best interest analysis is very broad and detailed.  Because of this, each parent can usually find some factors that favor them.  In fact, it’s quite rare for a judge to hear a custody battle that is truly “one-sided” as those often settle well before a divorce trial.  The key to success is to engage with an experienced family law attorney who is familiar with the local courts and judges in Maury and surrounding counties.  This way your attorney knows which factors certain judges weigh more heavily than others and, thereby, how to prepare your case to stress those factors in your favor.

As an example, experienced family lawyers in Columbia, Tennessee are familiar with one particular judge who (absent extraordinary situations) would look no further than the work schedules of each parent.  Little else mattered beyond logistics to this judge and lawyers in the know were sure to have their clients prepared accordingly.

Once a judge makes an initial custody determination, whether it be in a divorce or a paternity action for non-married parents, a Parenting Plan is created.

The Tennessee Parenting Plan

The Tennessee Parenting Plan law came into effect on January 1, 2001.  Here is a passage from the law:

The general assembly finds that mothers and fathers in families are the backbone of this state and this nation. They teach children right from wrong, respect for others, and the value of working hard to make a good life for themselves and for their future families. Most children do best when they receive the emotional and financial support of both parents. -T.C.A. 3-6-401(b)

The goal of this Parenting Plan legislation is to make divorce easier on children by lessening the hostility between separated parents and encouraging them to work together for the best interest of their children.  It moves away from concepts like “custody” and “visitation” and focuses on the “parental responsibilities” of each parent.

What is a Parenting Plan?

If you have minor children and are divorced (or divorcing), chances are good that you have a parenting plan.  Put simply, a parenting plan is a tool that separated parents use to co-parent their children.  It is typically a nine-page document that outlines the rights and responsibilities of each parent and covers the gamut of co-parenting issues, including:

  • Day to Day Visitation
  • Holiday Visitation
  • Child Support Payments
  • Decision Making
  • Who Gets he Federal Income Tax Exemption
  • Health and Dental Insurance
  • Life Insurance
  • Parental Relocation, and more.

You can read more about Tennessee Parenting Plans on the Tennessee Administrative Office of the Courts’ website.

What Happens If We Don’t Follow the Parenting Plan?

This can be confusing for some parents.  The Parenting Plan, once signed by a judge, is a court order.  That means that there can be real and serious consequences if one of the parents is not fulfilling the outlined parental responsibilities.  Depending on the severity of the parent’s non-compliance, that parent could potentially lose visitation time and risk an increase in child support.   The Parenting Plan is what parents go by when things are “normal” or what they default to when they can’t agree on something.

However, we often tell our clients that it is meant to make co-parenting easier, not become an additional burden to an already difficult situation.  Although a well-drafted plan attempts to be as comprehensive as possible, no document can ever cover all the events that happen in life.  For instance, a parent or child may get sick and not be able to participate in the scheduled visitation.  That’s not a problem and parents should feel free to tweak their co-parenting accordingly.

What About Permanent Changes to the Parenting Plan?

If you and your ex-spouse are getting along and agree to change a particular aspect of the plan, you should do so.  If it’s something relatively minor, like where or what time you’ll be exchanging the child, you probably don’t need to formally (through a legal process) modify your plan, though you certainly could if that is your wish.  However, a major change to the plan (like a permanent change to the visitation schedule or holiday time) should be reflected in a new plan that has been signed by a judge.

How to Change Custody and Visitation in Tennessee

The Tennessee Parenting Plan is really called a “Permanent Parenting Plan”.  However, like all court orders in family law, it is only permanent until another order changes it.  A parenting plan can be modified and there is a special procedure set out in the laws that must be complied with to do so.

Like many things in the world of family law, changing custody and visitation after a Tennessee divorce can be as easy or difficult as the parties make it.  Parents can, by mutual agreement, change their parenting plan with relative ease.  Inevitably, however, one parent wants to make a change to the custody or visitation schedule that the other parent opposes.  How can this be accomplished?

Once a parenting plan has been established, whether through the divorce process or in juvenile court for non-married parents, there is a legal standard that must be met before it can be changed.  This is why it’s so important to consult with an experienced family law attorney during the initial development of your parenting plan; sometimes you don’t get two bites at the apple.  Changing a plan is not necessarily something that can be done easily, if at all.

Custody vs. Visitation

First, there is an important difference between changing custody and changing visitation.  Changing custody refers to changing  the primary residential parent (the parent who has custody of the child the majority of the time, sometimes known as the custodial parent).  The non-primary parent is called the “alternate residential parent”.  Changing visitation means maintaining the statuses of the parents as primary residential and alternate residential, but altering the amount of time the child spends with each parent.  Generally speaking, it is more difficult to change custody and easier to simply change visitation.

Whether a parent seeks to modify custody or visitation, the standard is the same:  the parent wishing to make the change must prove that there has been a material change in circumstances that materially alters the child’s well-being.  Whether this standard has been met is often more art than science and discussing your unique situation with an experienced Tennessee family law attorney is crucial.

Material Change in Circumstances

The very first thing to prove is that there has been a material change in circumstances.  This question is broken down into the following three sub-parts:

  1. Whether the change occurred after the entry of the order seeking to be modified,
  2. Whether the change was not known or reasonably anticipated when the order was entered, and
  3. Whether the change is one that affects the child’s well-being in a meaningful way.

If the answer to any one of the above sub-questions is “no”, then there has not been a material change and a court will not modify custody or visitation.  If the answer to all questions is “yes”, then there has been a material change in circumstances and the court will advance to a best interest analysis.

Best Interest of the Child – Again

Just like in the initial custody determination process, a court will analyze the factors outlined above to aid in its determination of what co-parenting schedule is in the best interest of the child.

Additionally, in a modification proceeding, a judge will look at a parent’s actions under the last parenting plan.  For instance, substantial noncompliance or nonperformance of parenting responsibilities as outlined in the current parenting plan will likely cause a court to modify that plan and limit parenting time for the noncomplying parent in the new plan.

Non-Married Parents and the Parenting Plan

In Tennessee, any separated parent of a minor child can get a Parenting Plan.  When married parents choose to separate, they must go through a legal process (divorce).  That divorce will ultimately produce a Parenting Plan for them to use.  However, when non-married parents separate, there is no legal process that must occur; they simply cease being a couple and go their separate ways.  Many of them aren’t aware that they can get a Parenting Plan until months or even years of co-parenting strife has passed.

If you are the parent of a minor child and do not have a Parenting Plan, you are missing out on a tool that will significantly reduce the conflict between you and the other parent.  Even if your relationship with the other parent is currently satisfactory, chances are good that you will have a significant disagreement before your child turns 18.  Parenting disagreements are costly (both emotionally and economically) to solve.  It is much better for everyone involved (especially the child) if the parents come together to create a Parenting Plan.

In Tennessee, Child Custody and Visitation laws differ slightly depending on whether the parents are married or not.  For instance, in Maury and surrounding counties, divorce actions are brought in Chancery court and paternity / legitimization actions for non-married parents are brought in Juvenile court.  One of our experienced family law attorneys in Columbia, TN can help explain the differences between these two courts and how to best use those nuances to achieve your goals.

Your Next Step in Establishing or Modifying Child Custody and Visitation

As you can see, there is a lot of information to unpack here and this page only scratches the surface of Tennessee family law.  All the facts of your unique situation need to be evaluated by someone who knows what the courts are likely to do.  Your first step is to contact an experienced Tennessee family lawyer who can analyze your situation and provide you with sound advice about your options.