Below, we answer some common questions about child custody and parenting plans in Tennessee. To learn more about Tennessee family law, see our Tennessee Divorce and Family Law page. You can find all of our articles on custody and parenting after divorce in our Child Custody area.
What is a permanent parenting plan?
A "permanent parenting plan" is a detailed written outline of how divorcing parents will care for their children. Parenting plans contain an allocation of parenting responsibilities, the establishment of a residential schedule, and an allocation of child support. A residential schedule outlines when the children are in each parent's physical care and designates the primary residential parent. The residential schedule also covers details such as where the children will reside on given days of the year, including provisions for holidays, birthdays of family members, vacations, and other special occasions. If you have children and want a divorce, you will be required to attend a four-hour parenting class and enter a parenting plan with the court to qualify for a divorce. If you and your spouse cannot agree on a parenting plan, you must first go to mediation and try to agree on a parenting plan before the court will try your case.
What does it mean to be the primary residential parent?
Technically, the primary residential parent is the parent with whom the child resides more than half of the time. In most cases, however, the primary residential parent has the child most of the time, except for every other weekend, holidays, and special events. Most parenting plans read: "Each parent will make decisions regarding the day-to-day care and control of each child while the child is residing with that parent." Because most parenting decisions fall under the "day-to-day" designation, the determination of primary residential parent is most important.
How does the court decide who will be primary residential parent?
Every permanent parenting plan must include a residential schedule. The court will make sure there are residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. In making these determinations, the court will consider many factors including:
- the relative strength, nature, and stability of the child's relationship with each parent, including whether one parent has taken greater responsibility for meeting the child's daily needs
- the degree to which a parent has been the primary caregiver, defined as the parent who has taken greater responsibility for performing parental obligations
- the child's interaction and relationships with siblings and with significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities
- the importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment
- evidence of physical or emotional abuse to the child, to the other parent, or to any other person
- the character and behavior of any other person who resides in or frequents the home of a parent and such person's interaction with the child
- the reasonable preference of a child who is 12 years of age or older; the court may hear the preference of a younger child upon request, and the preference of older children should normally be given greater weight than the preference of younger children, and
- each parent's work schedule (the court may make accommodations consistent with those schedules.
No one factor controls, and each factor must be weighed and considered in relation to the others. However, any of the above factors may be outweighed by proof of either parent's abandonment of the child, substantial refusal to perform parenting responsibilities, physical or sexual abuse of a child or parent, emotional or physical impairment interfering with parenting responsibilities, drug, alcohol, or other substance abuse, abusive use of conflict which endangers the child's psychological development, withholding access to the child from the other parent without good cause, criminal conviction, or any other factors adverse to a child. A parent who commits this type of serious misconduct is quite unlikely to be named the primary residential parent.
Does the primary residential parent have the right to make all decisions?
A permanent parenting plan must allocate decision-making authority to one or both parents regarding the child's: education, health care, extracurricular activities, and religious upbringing.
Is the mother more likely to be granted primary residential parent status?
The parenting plan law states that gender should not be considered in making these determinations. In reality, however, a mother is still more likely to be granted primary residential parent status and be awarded final decision-making authority. This distinction isn't based on bias, but on the practical fact that mothers still perform most parenting duties in our society. The mother may have more time to devote to the child, if she has dropped out of the workforce or dialed back her career to care for the child. The mother may also have more experience in child rearing and an established track record in raising the parties' child. Of course, which parent has spent more time caring for the children will depend on the couple. In most cases, it is the care-giving role performed prior to and perhaps during the divorce, not the party's gender, that gives one parent the advantage.
Are fathers more likely to be awarded more responsibility for teenagers?
As a child's age increases, so does the father's opportunity to be designated primary residential parent, especially with teenage boys. During the teenage years, courts may perceive a greater need for "male nurturing" and a lesser need for traditional "care giving." The amount of time the parent has available and has actually spent in the past with the child will still be the more important factors, however.
Does the child have any say in the choice of primary residential parent?
If the child is over 12, the court will hear and consider the child's wishes. If the child is under 12, the court can choose to hear and consider the child's wishes. The older the child, the more weight his or her wishes will be given. However, courts do not look favorably upon a child being coerced or coached. Courts realize that involving a child in such a difficult situation, such as choosing between parents, could cause long-lasting feelings of guilt, which might seriously harm the child.
How important is the status quo in a court's decision?
Very important, especially where a child seems to be well adjusted. Courts are less likely to disrupt an acceptable situation in favor of the unknown. All things being equal, maintaining stability can be a judge's most important concern.
Are siblings always kept together?
Courts want to keep siblings together. In order to split siblings, there must be a compelling, reasonable, and practical reason. Even if the divorcing parents agree to split siblings, the court may reject the proposed arrangement.
What impact does a parent's new partner have?
If another person will come in contact with or influence the child by reason of a remarriage or similar changes in the child's or parent's living situation, and there is a basis for concern about the stability of the child's environment, the mental condition and character of that other person can become relevant in designating or modifying the primary residential parent determination.
What are the rights of the primary residential parent?
The primary residential parent has final authority to make decisions about the day-to-day care and control of the child while the child is residing with that parent, which will be most days. The parenting plan will further allocate final decision-making authority between the parents on topics such as education, health care, extracurricular activities, and religious upbringing. This authority may also be shared. In any event, one parent's authority is never absolute. A parent who disagrees with decisions made by the other can initiate mediation to discuss the other parent's decision on the grounds that the challenged action is not in the best interest of the child. This request for mediation, under the parenting plan, could be the first step to challenging the decision in court. Judges, though, will rarely overrule a parent's decision unless it will endanger the child.
What are the rights of the other parent?
The following are the rights of a parent during those times when the child is not in the care of that parent. That parent has the right to:
- have unimpeded telephone conversations with the child at least twice each week at reasonable times and for a reasonable duration
- send mail to the child, which the other parent shall not open and will not censor
- receive notice and relevant information as soon as practical (but within 24 hours) in the event of hospitalization, major illness, or death of the child
- receive directly from the school, upon written request (which includes a current mailing address and payment of reasonable copying costs), copies of the child's report cards, attendance records, names of teachers, class schedules, standardized test scores, and any other records customarily made available to parents
- receive copies (unless prohibited by law) of the child's medical, health, or other treatment records directly from the physician or health care provider who provided such treatment or health care upon written request (which contains a current mailing address and payment of reasonable copying costs), provided that no person who receives the mailing address of a parent as a result of this requirement shall provide that address to the other parent or to a third person
- be free of derogatory remarks made about such parent or such parent's family by the other parent to or in the presence of the child
- receive at least 48-hours notice, whenever possible, of all extracurricular activities, and the opportunity to participate or observe in those activities, including, but not limited to, school activities, athletic activities, religious activities, and other activities during which parental participation or observation would be appropriate
- receive from the other parent, in the event the other parent leaves the state with the minor child for more than two days, an itinerary, including telephone numbers, for use in the event of an emergency, and
- access and participation in the child's education, including the right of access to the minor child for lunch and other activities, on the same basis that is provided to all parents, as long as the participation or access is reasonable and does not interfere with day-to-day operations or with the child's educational performance.
The rights above also apply to the primary residential parent when the child is spending time with the other parent.
May the primary residential parent move out of state with the child?
It depends on the situation. The move may not be motivated by vindictiveness and must be in the best interests of the child. Timely notice, however, must be given tot he other parent. It's a good idea to consult with an experienced family lawyer before you make a final decision to move. A parent seeking to prevent the move may petition for a change of designation of primary residential parent or ask the court to deny the child's relocation. The factors the court must consider depend on whether the parents spend substantially equal time with the child or whether the parent seeking to relocate has the child for a greater proportion of the time.
May the parent remove the child from Tennessee temporarily?
Before a minor child is temporarily removed from Tennessee, the parent responsible for the removal must inform the other parent of the address and telephone number where the child may be reached during the period of temporary removal. It is always advisable to be up front in these situations.
Can the primary residential parent designation be modified?
Yes, in certain situations. First, there must be a material change of circumstance. Second, the modification must be in the best interest of the child. Tennessee appellate courts have decided what can be considered a change in circumstance. In general, for a court to find a change of circumstance sufficient to support changing the primary residential parent, it will consider whether or not the child is doing poorly in an important aspect of life, such as school performance, and the reasons for the problem. Unless there is something objectively wrong with the child, a court may be unwilling to change what appears to be working. Further, under most parenting plans, the parents will be required to mediate these disputes prior to heading to court.
What if the child decides he or she wants to live with the other parent?
The child's preference for a change of primary residential parent will not, by itself, constitute a sufficient cause for modification. Even if a child's feelings are very strong, the child's preference will be just one factor. Obviously if the child is older, the court will give more weight to the child's preference. The court may well question the child's motive or inquire as to whether inducements have been made by the parent. Also, a court will not look favorably at either parent allowing a child, especially a teenager, to use this leverage to gain an advantage or avoid discipline at the more strict parent's home.
Will spousal abuse affect the designation of primary residential parent?
Allegations of abuse are relevant and important, but technically not controlling. If the abuse is shown to have affected the children, the court will consider this along with the other factors discussed above. Courts look at abuse allegations closely for obvious reasons. If a court believes a spouse has made a false accusation of abuse to gain an advantage in litigation, the consequences will be serious.
What effect does an allegation of child abuse or neglect have?
Serious mistreatment or violence against a child will constitute a change of circumstance sufficient for a parenting plan modification. A court will distinguish abuse from a strict approach to discipline and will require evidence corroborating an allegation. Also, a guardian ad litem, attorney ad litem, or other trained professional will likely be assigned to investigate the charges and report to the court.
Will a primary residential parent's misconduct lead to a modification?
It depends. A moral indiscretion or legal problem alone will not suffice for a change of primary residential parent if the child is otherwise leading a normal and well-adjusted life. The court will consider the circumstances and look for objective manifestations of harm on the child. If there are none, the primary residential parent will likely not be changed unless the improper conduct is especially egregious.
Will the relative affluence of the parents affect the decision?
Although wealth is only be one factor, a wealthy parent may be perceived as able to offer a better education and opportunities. As anyone would expect, however, the more devoted parent who sacrifices and makes time for a child will almost always prevail over a wealthy parent who values a career over the child. In these situations, priorities become the central issue.
What is shared parenting, and how does it work?
If parents are to share final decision-making authority and there is a dispute, the method for resolution of that dispute must be spelled out, and most likely the court will require the parents to mediate before going to court. By splitting the designation of parenting or residential time from decision-making authority and by eliminating the terms "custody" and "visitation" from the new vocabulary, the parenting plan law hopes to seriously reduce "custody wars" and encourage "co-parenting."
Is there child support if both parents share parenting responsibility?
No. In most circumstances, child support will be ordered unless the child resides with each parent a roughly equal amount of time. The primary residential parent will receive child support from the other parent.
Can a spouse be denied visitation for failing to pay child support?
No. Visitation or parenting time will not be prevented unless a court order says so. Failure to pay child support is not grounds for termination of visitation or parenting time rights. There are other options for collecting child support, such as filing a petition for contempt seeking to put the non-paying parent in jail.
Can a spouse stop paying child support if a spouse denies visitaiton?
No. Proper enforcement of visitation or parenting time rights begins with filing a petition or referring the matter to mediation. Persistent violation of a court-ordered right to visitation or parenting time can be grounds for a change of primary residential parent.
Should a spouse fight for primary residential parent status?
Disputes over residential parenting time and final decision-making authority can be time-consuming and expensive. Be sure that you want these designations for the right reasons. Examples of wrong reasons include the need for child support, unwillingness to pay child support, fear of societal judgment, and anger. You will need to be able to prove the child will live a better life with you. Proving primary residential parent status requires evidence. Plan ahead, and discuss this with your attorney.