Child custody is an important decision and each case is very fact-driven. For this reason it is very difficult to compare one case to another. Many of the old legal presumptions that were used for many years for courts to decide child custody are no longer applied. For example, courts no longer apply the presumption that children of a very young age are better off with their mothers. Tennessee no longer employs the concepts of “sole” and “joint” custody, but rather the Court must fashion a document called a “parenting plan” that sets forth when the children will spend time with each parent. The parent that has the greatest number of days with the children is typically referred to as the “primary residential parent,” but this term does not mean the other parent loses decision-making rights or a voice in the children’s upbringing.
Courts are now required to apply certain factors listed in the Tennessee Code in making a custody determination, which are:
o (1) 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;
o (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;
o (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;
o (4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
o (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;
o (6) The love, affection, and emotional ties existing between each parent and the child;
o (7) The emotional needs and developmental level of the child;
o (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;
o (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;
o (10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
o (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;
o (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;
o (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;
o (14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
o (15) Any other factors deemed relevant by the court.
These factors are found in Tennessee Code Annotated § 36-6-106. In 2014 the Tennessee General Assembly enacted legislation which made these factors uniform in all types of custody decisions, so that all courts are applying the same factors in all types of cases, whether the custody determination stems from a divorce, or a change of custody petition years after a divorce, or a case in which the parents were never married to each other.
There is no rule that applies to give one of these factors more weight than another. The Court must simply try to determine the overall picture while considering these listed factors, in order to arrive at a parenting plan that sets forth when each parent will have the children with them.
Of great interest is language contained in the revised statute, added in 2012, which requires the court to attempt to give each parent the most possible time with the children. This section reads as follows:
‘In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.”
There have been few cases discussing what this means until very recently, and most family law attorneys have continued to find that many courts would simply assign a schedule, commonly referred to as “standard parenting,” which provided for an every-other-weekend type schedule for the alternate (non-primary) residential parent. On February 25, 2015, the Court of Appeals for the Middle Section of Tennessee released a decision in In Re: Blaklyn M., a case that originated in Sumner County Juvenile Court. The father had appealed because he contended that the court’s award of a “standard” type visitation schedule (i.e., every other weekend and gradually increasing weeks in the summer) did not meet the mandate in this statute of maximizing the father’s time with his child. The Court of Appeals’ decision was mostly based on lack of specific findings by the Juvenile Court in determining a parenting schedule. However, this may indicate that increasingly a court’s blanket application of a standard parenting schedule in all cases, or where the parties cannot agree on a parenting schedule, will no longer be acceptable and the court will have consider carefully in its ruling, the “why” of applying a particular parenting schedule.
The best decisions about custody are made by the parents, working together to establish an agreed-upon parenting plan for their children since they know their family’s needs and schedules better than anyone else. This is why most of our courts now require that parents attempt to engage in mediation to reach an agreed parenting plan before resorting to litigation to determine parenting time. Litigation often results in neither parent being happy with the parenting schedule, while in a mediated parenting plan the parents each have input into the schedule and the Parenting Plan represents a compromise that both have agreed to.
We represent many parents who are involved in child custody disputes. We also offer mediation services for parents who wish to mediate custody issues either before or during litigation involving child custody. Remember that if you already have a parenting plan that you want to modify, it probably requires that you attempt mediation before going back to court. Please call us – we can help!