Under no circumstances should this be considered legal advice, nor does it substitute for legal consultation. The responses to frequently asked questions are intended to be general statements. The correct answer to any legal question is: "It depends." Often there are exceptions to most law, especially issues concerning family law. Also, judges may interpret the law differently. The law changes over time. Anything written here could have changed between the time it was written and when it is read. Without exception, seriously consider consulting with a lawyer before you make any decision affecting your legal rights.

What is a "permanent parenting plan," and what does it mean to me?
A "permanent parenting plan" is a detailed, written outline providing for parenting in the best interests of the 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 states the details concerning in which parent's home the children shall 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? Is it the same as the old custodial parent?
Technically, "primary residential parent" means the parent with whom the child resides more than fifty percent (50%) of the time. In most cases, however, the primary residential parent will have the child in that parent's care much of the time, except for every other weekend, holidays, and special events. Most parenting plans will 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. The "custodial parent" and "primary residential parent" designations are not exactly the same. Under prior law, "custodial parent" generally meant the parent who exercised final decision-making authority and the parent with whom the child primarily resided. Under the new parenting plan law, these concepts are split. Final decision-making authority is discussed separately from residential time and can be fragmented between the parents by category, such as education or religious training.

In deciding which parent will be the primary residential parent, what factors will the court take into account?
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 the following factors:

(1) The parent's ability to instruct, inspire, and encourage the child to prepare for a life of service and to compete successfully in the society which the child faces as an adult;

(2) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken a greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the bests interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent's lack of good faith in the proceedings;

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

(6) The degree to which a parent has been the primary caregiver, defined as the parent which has taken greater responsibility for performing parental responsibilities;

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

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

(9) The character and physical and emotional fitness of each parent as it relates to his or her ability to parent or as it relates to the welfare of the child;

(10) The child's interaction and interrelationships with siblings and with significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;

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

(12) Evidence of physical or emotional abuse to the child, to the other parent, or to any other person;

(13) 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;

(14) The reasonable preference of the child if it is 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 the preference of younger children;

(15) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and

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

No one factor controls, and each factor must be weighed and considered in relation to the others. Note that any of the above factors may be overshadowed if any of the following allegations are proven: abandonment, 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, a parent's criminal conviction, or any other factors adverse to a child. Obviously, these important considerations can weigh most heavily in the event they exist and can be proven.

Does a permanent parenting plan determine who has the final say-so? Is it always the primary residential parent?
A permanent parenting plan must allocate decision-making authority to one or both parents regarding the child's:

(1) education,

(2) health care,

(3) extracurricular activities, and

(4) religious upbringing.

This means that the final say-so could depend on the topic. A permanent parenting plan must also state that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child.

Is the mother more likely to be granted primary residential parent status and be awarded final decision-making authority?
The new parenting plan law states: "It is the legislative intent that the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause presumption in favor of or against such party." This statement did not change the law. Therefore, all things being equal, in reality a mother is still more likely than not to be granted primary residential parent status and be awarded final decision-making authority, but not always for the reasons one might expect. Depending on the court, one reason may be that, in most situations, the mother may have more time to devote to the child than a father employed in a demanding profession. Another reason may be that the mother may have more experience in child rearing and may have an established track record in raising the parties' child. Keep in mind, however, that there are many exceptions for many reasons. In certain situations, as was for one couple from Germantown, Tennessee, the father had fulfilled the traditional primary care-giving role prior to the divorce and received full custody after a trial. Today, under the new law, he would most likely be granted primary residential parent status and be awarded final decision-making authority for the same reasons. In most cases, it is the care-giving role performed prior to the divorce, and/or during the divorce, not the party's gender, that creates this advantage or disadvantage.

What about with older kids - say, teenagers?
For a father, as a child's age increases, so does his opportunity to be designated primary residential parent, especially with teenage boys, due to a perceived greater need for "male nurturing" and lesser need for traditional "care giving." The amount of time the parent has available and has actually spent in the past with any child are very important factors.

Must a mother be declared unfit before a father will be granted primary residential parent and be awarded final decision-making authority?
No. Discrimination based on gender is prohibited by the Tennessee and U. S. Constitutions.

Does the child have any say in the choice of custodial parent?
If the child is over twelve (12) years old, the court will hear and consider the child's wishes. If the child is under twelve (12) years old, the court can choose to hear and consider the child's wishes. The older the child, the stronger his or her wishes will be considered. Beware that 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 concerning primary residential parent?
Very, 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 spouse, live-in companion, or other person sharing the home have on a designation of primary residential parent?
Before a divorce is granted, most courts severely frown upon children being exposed to such persons, under any circumstances. In a post-divorce situation, the court must find a material change of circumstances to change primary residential parent. A remarriage is not necessarily a change of circumstances, but it can be if the child is affected. In those situations where 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 a determination of primary residential parent designation or modification proceeding.

Will spousal abuse affect the designation of primary residential parent?
Allegations of abuse are relevant and important, but technically not controlling. Where 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 advantage in litigation, the consequences will be serious.

What are the rights of the primary residential parent?
The primary residential parent has final decision-making authority over decisions regarding the day-to-day care and control of each 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, a parent's authority is never absolute. An aggrieved parent disagreeing with the parent with the authority can initiate mediation to "discuss" the other parent's decision on the grounds that the challenged action to be taken 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 unimpeded telephone conversations with the child at least twice each week at reasonable times and for a reasonable duration;

To send mail to the child which the other parent shall not open and will not censor;

To 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;

To receive directly from the school, upon written request, which includes a current mailing address, and upon payment of reasonable costs of duplicating, 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;

Unless otherwise provided by law, to receive copies 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 upon payment of reasonable costs of duplication, 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;

To 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;

To be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular activities, and the opportunity to participate or observe in those activities, including, but not limited to, the following: (i) School activities, (ii) Athletic activities, (iii) Church activities, and (iv) Other activities during which parental participation or observation would be appropriate;

To receive from the other parent, in the event the other parent leaves the state with the minor child for more than two (2) 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, provided 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.

If the primary residential parent wants to move out of state with the child, will this be permitted?

Yes, if the move is not motivated by vindictiveness and is in the best interest of the child. Timely notice, however, must be given. Consulting a family law attorney well in advance of moving is advised. A parent seeking to prevent the move may petition for a change of designation of primary residential parent.

May the parent remove the child from Tennessee temporarily, such as for a vacation?
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.

Once there is a determination of primary residential parent, under what circumstances may it be modified?
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, an important consideration will be whether or not the child is doing poorly in an important aspect of life, such as school performance, and the reasons therefore. 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 newly desired 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.

Does the court refuse to modify a parenting plan within a short period of time after its determination of primary residential parent?
Generally yes, unless there is a very, very good reason.

What effect does an allegation of child abuse or neglect have on the determination or modification of the choice of who is to be the primary residential parent?
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 effect on the child will be the central issue. If the child is unaware of the mistake or error in judgment, this will be a mitigating factor. Most judges will require, upon request, that a primary residential parent not live with his or her lover or allow an unmarried romantic friend spend the night in the presence of the child. The remedy, however, may be to first order a restriction of the improper conduct and then to change primary residential parent status only upon repeated violations of a court order. In any event, the court will consider the circumstances and look for objective manifestations of harm. 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 awarding primary residential parent status?
While wealth may 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?
Under prior law in Tennessee, the term "joint custody" had more than one meaning. In a true joint custody situation, parents shared the final decision-making authority. If one parent had been labeled the "primary custodial parent," that parent had final decision-making authority, and in most situations, the child would have resided with that parent. Visitation was a separate issue from custody. Some of these labeling problems are solved by the parenting plan legislation. For example, 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 mandatory mediation prior to asking the court to resolve the dispute. 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 new parenting plan law hopes to seriously reduce "custody wars" and encourage "co-parenting."

If both parents share parenting responsibility, does that mean no one pays child support?
No. In most circumstances, the only way child support will not be ordered is if 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 I stop my spouse from seeing the children if I don't get my child support payments?
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. To collect child support, there are other collection options, such as filing a petition for contempt seeking to put the non-paying parent in jail.

Can I stop paying child support if my spouse won't let me see the children?
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.

If I am considering entering into a legal fight over primary residential parent status, what else should I know?
There are only a few things in life more difficult or more expensive than disputes over residential parenting time and final decision-making authority. 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. This means evidence. Plan ahead, and discuss this with your attorney. Also, there are many good books and parenting magazines available at any serious bookstore. Read them. There is no substitute for informed decision-making and sound judgment. Do discuss your situation thoroughly with your attorney and those you trust most in your life to give you sound advice.

Last modified:  January 18, 2005 - 06:54 AM



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