As a parent, the prospect of divorce becomes far more complicated when you consider the decisions that must be made about custody of your children. If you and your spouse are unable to come up with a plan, you will be at the mercy of whatever the court decides is in the best interest of your children. Having a judge make a custody decision for your family can be incredibly stressful for you and for the children. The family court judge has wide discretion to make decisions about custody.

Sometimes, however, an agreement is just not possible. For those co-parents who can’t come to an agreement on their own, let’s consider the factors the family courts in Tennessee must consider, and equally as important, what they may not consider when making a child custody decision.

The “best interests of the child” is always first

Tennessee courts make custody decisions based on the best interests of the child. Under Tennessee law, TN Code § 36-6-404 (2017) when parents divorce they are required to create a permanent parenting plan which must provide for the child’s changing needs over time, establish the authority and responsibilities of each parent with respect to the child and minimize the child’s exposure to harmful parental conflict. How they reach these agreements can be up to the parents, and creativity is not necessarily discouraged.

When it is left to the court, however, the plan can be more regimented. There are fifteen general custody provisions in the law that judges consider. Some of them include:

• The child’s relationship with each parent.
• Each parent’s past and potential future performance of parenting responsibilities including the willingness of each parent to facilitate a close parent-child relationship between the child and both parents.
• The ability to provide the child with food, clothing, medical care, education and other care.
• The love, affection and emotional ties between the child and both parents.
• The emotional needs of the child.
• The moral, physical, mental and emotional fitness of each parent as relates to their ability to parent the child.

If the child is 12 years of age or older, the judge may also take their preference under consideration, and it will be given greater weight than the preference of younger children.

(For a full list of the custody decision factors see the full text of the law)

Factors that a family law judge should not consider in custody decisions

Conversely, there are several factors which judges may not consider in making their decisions about custody, which might include the parents’ genders, race, and socio-economic status. Additionally, issues of sexual orientation of the parents which are not expressed in the law fall under the grey area of a judge’s discretion.

You and your soon-to-be-former spouse can find a way to set your personal grievances aside and collaborate on a parenting plan agreement that will serve the child you both love and care about, or you can allow a judge to make that life-altering choice for you. When you work with an experienced Nashville child custody lawyer, you will have the benefit of strong legal guidance and negotiation skills to create the results you need.

Do not hesitate to stand for the rights and best interests of your child amid custody negotiations. At Miller Upshaw Family Law, PLLC, you will find a trusted advocate for your child’s and your needs. To reserve an in-person or video consultation at our office in Nashville, please call 615-391-4200, or fill out our contact form.