When a couple with children divorces, the separation of the parents could have a significant and lasting impact on their children’s lives. Depending on several factors, those children may have strong preferences for which parent they want to live with on a more full-time basis.
It is the priority of the court to make a custody ruling on a case by case basis in the best interests of the child. Typically, when a child is age 12 or older the judge will consider the child’s preference in the ruling, but ultimately the court has the final say regardless of the residential schedule. Tennessee law allows the judge to give greater weight to an older child’s preferences, but the child is not able to simply choose which parent he or she would prefer to live with after the divorce decree is final.
Children under 12 may also be asked to testify in certain cases, though it depends on the judge. Regardless of how old the child is, the child must understand what it means to take an oath promising to tell the truth.
The parents can create their own parenting plan
Parents can decide on their own who will maintain the primary residence for the children, and Tennessee family judges will usually honor those decisions if the parents agree this is in the best interest of their children. However, if the couple is unable to come to an agreement between themselves about custody, then the court will have to decide for them. There is also the option of mediation to help the two parties come to an agreement.
If the couple is unmarried, the mother gets physical custody by default when the child is born. If the father wants to pursue physical custody, he must first assert his paternity rights which will give him the right to parenting time with his child. When an unmarried couple is unable to come to an agreement about custody, the court will also rule in their case.
Additional factors
In addition to considering the preferences of an older child, Tennessee law contains a long list of criteria that the judge must consider when coming to a decision about child custody that include factors such as the state of each parent’s physical and mental health, whether either parent has a record of abusing the child or any other children, each parent’s ability to be an effective caregiver to the child, whether there is any evidence of either parent abusing alcohol or drugs, religious and cultural considerations and the opportunity for the child to have access to and support from their extended family.
The Tennessee court endeavors to err on the side of making sure that the child gets the opportunity to have a healthy, bonded relationship with both parents. Custody decisions are made with that goal in mind and above all else in the child’s best interest.
Coming to an agreement on a Parenting Plan can be very contentious, even in the most amicable divorces. The experienced legal team at the law firm of Miller Upshaw Family Law, PLLC, understands the challenges that families face. Contact us to schedule an appointment at our Nashville office to discuss your goals.
Karla C. Miller has devoted her entire career to the practice of family law in Tennessee. She attended Auburn University and Nashville School of Law, and upon graduation in 1996, she opened her own law firm and has been assisting families throughout Tennessee since then. Learn more about Karla C. Miller here.
