When two parents decide to end their romantic relationship, they still have to decide what to do about the custody of their children. All too often, they cannot agree about this, and they wind up going to court and asking a judge to make an initial custody determination to allocate the time the child spends with each parent.
Parents can hire attorneys to speak for them and explain what they want. But what about the opinion of the children? Does a judge have to consider their custodial preference? The answer, in short, is that Tennessee courts must consider a child's custodial preference in some, but not all, cases.
There are two kinds of custody: legal and physical. Legal custody refers to a parent’s right to be heard in making major decisions about the child’s life, such as the child’s medical, educational, cultural, and religious upbringing. Physical custody, on the other hand, refers to where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.
Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.
To make an initial custody determination, Tennessee judges have to issue an order that takes into account the child's best interests and permits both parents to enjoy the maximum possible participation in the child's life. The court has to look at a list of factors and can't just use one or two factors to the exclusion of the evidence about the rest. These factors include:
The disability of a parent seeking custody cannot create a legal assumption for or against awarding custody to that parent, but the court can consider the disability as one factor among the rest. Similarly, the court cannot favor one parent over the other because of gender.
For more information about custody decisions and family law matters, the Tennessee State Courts maintain a juvenile and family law website that contains forms and additional research.
Although Tennessee law makes it clear that judges must at least listen to the custodial preference of children aged 12 and older, and possibly even younger children, the matter isn't quite as simple as it sounds. The appellate cases seem to establish that the opinions of children aged 14 and older are given the greatest weight, although the custodial preference of younger children have also been given consideration as one of the best interest factors.
The critical factor for a family law judge is whether a child has the maturity and discretion to express a reasonable preference. The court is interested in opinions that are intelligent and articulate enough to assist the court in making a good custody decision. Judges may decline to hear any custodial preference from very young children, particularly children as young as six.
A mature, intelligent, and reasonable opinion from a child will be rational and self-aware. For instance, if a child testifies that she loves both parents equally, but wants to live primarily with her father because her home life is more secure and stable there, then the court is likely to give this opinion greater weight. But if a child testifies that she wants to live with her father because he gave her a pony and she can ride it at his estate, the court is unlikely to assign this preference any weight. On the other hand, if a parent bribes, punishes, or badgers a child into articulating a preference, the court will disregard that child's preference.
It's always important to remember that a child's custodial preference is just one factor in a long laundry list of information the judge has to consider.
The first step many judges take is to appoint a guardian ad litem - someone who represents the best interests of the children. The guardian conducts an investigation and offers an opinion about each of the best interest factors. The report the guardian generates isn't admissible at trial, but the guardian can and frequently does testify about the investigation and offers an opinion as to the best interest factors, including a child's preference.
Generally, children don’t have to articulate their preference in open court. Judges will often interview children privately, in secure judicial chambers, away from the courtroom. The court is unlikely to interview very young children.
If the judge chooses a private interview, the parents' attorneys—though not the parents themselves—have a right to be present. A court reporter must also be present to prepare an official transcript of the interview.
When the court concludes the interview, the judge will thank the children for expressing a preference and reassure them that the decision belongs to the court and that they are not responsible for the outcome.
If you and your former spouse or partner can't agree about child custody, the wisest decision is to seek out advice from an experienced Tennessee family law attorney. The judicial process can be confusing and daunting, and a legal advocate can help you reach a positive outcome.