Child Custody and Divorce

Note:  This post has been updated on 04/30/14 to reflect changes in the law that will take effect on 07/01/2014.  The list of factors the court must consider were modified by the Tennessee State Legislature, and the new list appears below.

You’re getting a divorce.  Both you and your spouse want custody of the children.  You’re both decent people.  You’re probably concerned about how the court will divide the parenting time with the kids.

Cases involving child custody are often the most heated, time consuming, and most expensive cases in the Family Court.  Very often, the court finds itself trying to decide between two people who love their kids, may have made a few mistakes, want what’s best for the children, and will feel like losing primary care of the kids will be an unbearable loss.  How does the court do this?

Best interests of the child

In Tennessee, whether the parties are getting a divorce or wanting to change the parenting schedule, the child custody analysis is basically the same.  The overall goal of the court is to develop a parenting plan that is in the best interests of the children.  All other considerations are secondary, as our courts are charged with the responsibility to protect the kids.

This is so important that even if the parents come up and agree upon a schedule on their own, as part of an irreconcilable differences divorce, the court is not required to accept the parenting plan if the court doesn’t feel that it serves the children well.  It is not at all uncommon in our local courts for a judge to send the parties back to the negotiating table, which can sometimes be a problem for couples who came to this agreement after weeks or months of negotiating.

The best interests analysis

So, what factors will the court consider in it’s child custody determination?  The Tennessee legislature has written statutes that give our judges a list of factors to consider.  These include:

(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child;

(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;

(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;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(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;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(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;

(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;

(10) The importance of continuity in the child’s life in the length of time the child has lived in a stable, satisfactory environment;

(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;

(12) The character and behavior of any other person who resides in or frequent the home of a parent and such person’s interactions with the child;

(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;

(14) Each parent’s employment schedule, and the court may make accommodations consistent with of those schedules; and

(15) Any other factors deemed relevant by the court.

Obviously, that’s a lot for a court to consider, and this isn’t even a complete list.  The statutes only say that the analysis should include these factors.  Divorce courts often consider other evidence, like: whether a parent has moved a significant distance away; whether the children should be separated or kept together; whether a child should stay with a parent of the same gender; as well as just about anything that might affect the child.

Building your case

The judge can only consider the information that is properly presented to the court.  It’s a safe bet that each spouse will have siblings, parents, and friends who will all testify that the spouse is a great parent and really deserves to have the children most of the time.  If you’re in a situation where some ugly facts need to be shown to the judge, you’ll have to work a little harder.

This may require some strategy, starting with which grounds to allege and how to proceed with discovery.  You may even require expert witnesses, like a counselor or psychologist to explain to the judge the particular needs of each child and how the parent’s actions affect those needs.  This needs to be done correctly, and I would encourage anyone with such a case to obtain the help of a lawyer.

What you need to know

As the list above suggests, your judge will consider a wide spectrum of factors when making a custody decision and writing your parenting plan.  If your spouse has done something that is potentially harmful to the children, don’t think that just one mistake will necessarily tip the scales in your favor (unless the mistake is quite serious).   The judges know that parents are human and will make poor decisions from time to time, so you need to present more evidence about the situation.

If your case is likely to go to trial, you’ll need to carefully plan how to present evidence to the judge, which witnesses will provide the best testimony, how to prove your spouse’s witnesses are lying, and what experts to consider.  An attorney will be a huge help to you though this process.  If your situation is anything like this, contact me to find out how I can help you.