Custody

Custody is determined according to the best interests of the child. The judge will create a permanent parenting plan that allows both parents to have as much participation as possible in the child’s life while taking into consideration the following relevant factors to determine the child’s best interests:

• the location of each parent’s home;
• the child’s need for stability;
• love, affection, and emotional ties existing between the parents and the child;
• the ability of the parents to provide the child with food, clothing, medical care, education, and other necessary care;
• whether one parent has been the primary caregiver;
• the importance of continuity in the child’s life and the length of time the child has lived in a stable environment; Note: If you can prove to the judge that you took your child from the home because the other parent abused your child, this relocation should not harm your chances of getting custody;
• the stability of the family unit of the parents;
• the mental and physical health of the parents;
• the home, school, and community records of the child;
• any “reasonable preference” of a child who is 12 years old or older as to where they want to live; Note: The preferences of older children are normally given greater weight than those of younger children, but the judge may hear the preference of a younger child if you request it;
• evidence of physical or emotional abuse of the child, the other parent, or any other person, including the child’s siblings;
• the character and behavior of any other person living in, or frequently visiting, a parent’s home, and that person’s interactions with the child;
• whether a parent has failed to pay court-ordered child support;
• whether a parent has had custody or parenting time restricted in the past, and if so why; and
• each parent’s ability to manage parenting responsibilities, including his/her willingness and ability to encourage a close and continuing parent-child relationship between the child and the other parent. In determining each party’s willingness, the judge is supposed to consider:
  • the likelihood of each parent to honor and facilitate court-ordered parenting arrangements and rights; and
  • any history of either parent of denying parenting time to the other parent in violation of a court order.¹

Note: The judge will not consider the 14 factors listed above when creating the residential schedule if the judge believes that the other parent “willfully abandoned” the child or committed physical abuse, sexual abuse, or a pattern of emotional abuse against you, the child, or anyone else living with the child. The reason why the judge won’t consider those factors is that the law would place limitations on the other parent’s time due to the abuse or abandonment. The judge is required to put in writing in the order whether the other parent committed any of these acts, and therefore whether the judge is considering the 14 factors listed above.¹ For more information, see Can a parent who committed violence or abandoned the child get custody or visitation?

The judge can also limit a parent’s involvement with the child in a parenting plan if the judge finds, after a hearing, any of the following that may have a negative effect on the child’s best interest:

1. The parent has neglected or substantially not performed parenting responsibilities, including not paying court-ordered child support;
2. The parent has an emotional or physical impairment that interferes with performing parenting responsibilities;
3. The parent’s ability to perform parenting responsibilities is reduced by abuse of drugs, alcohol, or other substances;
4. The parent and child do not have emotional ties, or those emotional ties are considerably damaged (substantially impaired);
5. The child’s psychological development is in danger of being harmed by the parent’s emotional abuse (abusive use of conflict);
6. The parent hasn’t let you see the child for a long time without a good reason;
7. The parent has criminal convictions associated to his/her ability to parent or to the child’s welfare; or
8. Any other factor or conduct that the judge finds will harm the child’s best interests.²

Note: A parent’s disability can only be considered if it impacts the parent’s ability to meet the child’s needs.³

¹ Tenn. Code § 36-6-106(a)
² Tenn. Code § 36-6-406(d)
³ Tenn. Code § 36-6-106(e)