Custody

Custody
The judge is supposed to take into account a parent’s history of physical or emotional abuse towards you, the child, or anyone else, including the child’s siblings, when making a custody decision. However, the best interests of the child and other factors will also be considered, and the abusive parent may still receive custody rights.¹ If a parent has been convicted of any criminal sexual offense listed here against a minor, the judge will assume that the parent should not get custody.² Also, if a parent is under indictment for aggravated child abuse, child sexual abuse, or severe child sexual abuse, s/he cannot get any sort of custody while the criminal case is pending unless s/he can prove to the judge that s/he does not present a substantial risk of harm to the child.³

Visitation
Visitation may be awarded to a parent who has committed violence unless, after a hearing, the judge determines that visitation is likely to endanger the child’s physical or emotional health. If the judge determines that the non-custodial parent has physically or emotionally abused the child, the judge can require that visitation be supervised or that visitation is not allowed until such abuse has stopped or until there is no reasonable likelihood that such abuse will happen again.⁴ ­The judge can only award visitation under circumstances that guarantee the safety of the child. For example, the judge can order:

• that all visits must be supervised by a responsible adult or agency;
• the abusive parent to go to counseling;
• no overnight visits;
• that the child’s address be kept confidential; and
• anything else to keep the child safe.⁵

If a parent has been convicted of any criminal sexual offense listed here against a minor, the parent can only get supervised visitation if s/he is granted visitation at all.⁶

If a parent has willfully abandoned the child for 18 months or more, the parent’s residential time should be limited and s/he will likely be granted only limited visitation with the child. The term “willful abandonment” includes a situation where the parent substantially refuses to perform parenting responsibilities.⁷

Note: If a parent is given supervised visitation for any of the following reasons, there is what is called a “rebuttable presumption” that this parent will be responsible for paying all of the costs of the supervised visitation:

1. The parent willful abandoned the child for an extended period of time or substantial refused to perform parenting responsibilities, including failing to pay court-ordered child support;
2. The parent or someone living with the parent physically, sexually, or emotionally abused you, the child, or another person living with the child;
3. The parent or someone living with the parent was convicted of:
   
   1. incest;
   2. sexual exploitation, aggravated sexual exploitation, or especially aggravated sexual exploitation of a child;
   3. rape or aggravated rape;
   4. sexual battery or aggravated sexual battery;
   5. statutory rape, mitigated statutory rape, or aggravated statutory rape;
   6. sexual contact with a minor by an authority figure; or
   7. indecent exposure;
4. The parent or someone living with the parent has been found to be a sexual offender;
5. The parent’s ability to perform parenting responsibilities is reduced by:
   
   1. an emotional impairment;
   2. a physical impairment, or
   3. abuse of drugs, alcohol, or other substances;
6. The parent and child do not have emotional ties, or those emotional ties are considerably damaged (substantially impaired);
7. The child’s psychological development is in danger of being harmed by the parent’s emotional abuse (abusive use of conflict);
8. The parent hasn’t let you see the child for a long time without a good reason;
9.  The parent has criminal convictions that relate to his/her ability to parent or to the child’s welfare; or
10. There is any other factor or conduct that the judge finds will harm the child’s best interests.⁸  

¹ Tenn. Code § 36-6-106(a)(11)
² Tenn. Code § 36-6-101(a)(2)(A)(ii)
³ Tenn. Code §§ 36-6-101(a)(2)(A)(v); 36-6-112(c)(2)
⁴ Tenn. Code § 36-6-301
⁵ Tenn. Code § 36-6-107(b)
⁶ Tenn. Code § 36-6-101(a)(2)(A)(ii), (a)(2)(A)(iii)
⁷ Tenn. Code §§ 36-6-406(a)(1); 36-6-101(a)(2)(A)(iv)
⁸ Tenn. Code § 36-6-406(h)