CHILD CUSTODY

Note:  This page is not intended as legal advice.  It expresses general principles about Tennessee law as it stands in early 2023.  The laws relating to divorce and child custody change regularly in Tennessee.  You should contact an attorney to get advice about your specific situation under the law as it exists at the time your situation arises.  You are invited to make an appointment with Ms. Holyfield to discuss the specifics of your situation.

Which parent usually wins custody of the children in Tennessee?

In Tennessee, child custody can either be adjudicated as part of a divorce proceeding (in a circuit or chancery court) or as an independent action in a juvenile court.

When a Tennessee court considers how to allocate responsibility for and parenting time with a child, the Court considers the child's best interests.  By Tennessee law, there is no presumption in favor of or against joint or sole physical or legal custody.  There is no presumption that the mother will become the primary residential parent*.  There are no presumptions at all, because the Court's responsibility is to safeguard the best interests of the child.

Although there are no presumptions, there are specific factors the Court must ordinarily consider.  Those factors are listed in Tennessee Code Annotated § 36-6-106.  The relevant considerations include but are not limited to the strength of the emotional ties between parent and child, willingness to provide for the child's needs (physical, emotional, educational, etc.), which parent has been the primary caregiver, stability of the parent and his/her family unit, the need for continuity in the child's life, and the willingness of each parent to encourage the child to have a good relationship with the other parent. 

While the Court may take the reasonable preference of a child into account, particularly if the child is over age 12, children do not have the right to choose which parent will be the primary residential parent, nor do they have the right to set the parenting time schedule.  The preference of a child is only one factor out of many potentially relevant factors, but it does not guarantee any particular outcome.

Tennessee is beginning to disfavor the traditional language of child custody in favor of new terminology that recognizes the important role both parents play in the life of a child.  The parent who is responsible for the children the majority of the time is now known as the primary residential parent rather than the custodial parent.  The other parent is called the alternate residential parent instead of the noncustodial parent.  Parents no longer have visitation or physical custody; rather, they exercise parenting time with the child.  We no longer talk about legal custody, but instead refer to parental decisionmaking authority.

Because no one knows children better than their parents, the best parenting arrangements tend to be those created by the parents together.  This can occur through negotiation or through a process called mediation.  These processes usually go better with the involvement of an attorney.  When the parents agree about all relevant issues, they will typically sign an Agreed Permanent Parenting Plan setting forth when each parent will have time with the child, which parent will make non-emergency decisions about the child, how much child support will be paid by which parent, who will cover the child on health insurance, and so on.

Unfortunately, parents are not always able to agree about what arrangement is in the best interests of the child, and in those cases, the courts must decide.  If you find yourself embroiled in child custody litigation, make sure to have an attorney you trust by your side.

*Note, however, that in Tennessee, the mother of a child born out of wedlock automatically has sole legal and physical custody of that child until a court orders otherwise.  See Tennessee Code Annotated § 36-2-303 for more information.