Tennessee Child Custody and Parenting Plans

Below are answers to some common questions about child custody and parenting plans in Tennessee.

What Is a Parenting Plan in Tennessee?

A parenting plan is a detailed written outline of how parents will care for their children after a divorce or separation. Parenting plans allocate parenting responsibilities and delineate each parent's right to make decisions on behalf of the child. Your parenting plan will establish each parent's visitation schedule (including weeknight, weekend, holiday, and summer visitation) with the child as well as allocation of child support.

One parent will be designated the primary residential parent (typically the parent who lives with the child). Parenting plans can be temporary or permanent. Temporary parenting plans are put in place while a custody case is pending, whereas permanent parenting plans are turned into a final court order.

Parents who can reach an agreement on custody can submit a joint parenting plan to the court. When parents can't agree on parenting responsibilities, each parent should submit his or her own parenting plan to the court at least 45 days before trial. See TN Code § 36-6-404 (2020).

What Does it Mean to Be the Primary Residential Parent?

Every permanent parenting plan must include a residential schedule. See TN Code § 36-6-402 (2020).

A "residential schedule" defines when the child is in each parent's care including holiday and weekend visits. The "primary residential parent" is the parent with whom the child resides more than half of the time under the residential schedule. Even when parents share parenting responsibilities, one parent will be designated as the "primary residential parent." This parent has the final say on decisions involving the child when the parents can't agree.

The primary residential parent doesn't necessarily have the right to make all parenting decisions. This will depend on how a judge has allocated decision-making responsibilities in your permanent parenting plan. However, a primary residential parent is likely more involved in day-to-day decisions regarding the child.

How Do Judges Make Custody Decisions in Tennessee?

A judge will choose a primary residential parent and design a residential schedule based on the child's best interests. To determine the child's developmental and emotional needs, a judge will consider several factors, including:

• the child's relationship with each parent
• each parent's role in performing parental caretaking obligations
• the child's relationships with siblings and extended family members
• the child's adjustment to home, school, and community
• the importance of continuity in the child's life including the length of time the child has lived in the current environment
• either parent's history of domestic violence or emotional abuse
• each parent's moral, physical, mental and emotional fitness
• the child's reasonable preference if 12 years old or older
• each parent's work schedule, and
• any other factor the court deems relevant.

In most cases, no single factor will control the outcome of your case. A Tennessee judge will weigh each of the above factors in relation to the others. See TN Code § 36-6-106 (2020).

However, a parent who has committed domestic violence or abuse is unlikely to be named the primary residential parent. A parent who has committed serious misconduct would need to show a judge that the child is safe in that parent's care before receiving custody.

Is a Mother More Likely to Be Granted Primary Residential Parent Status?

Tennessee custody laws prohibit a judge from basing custody decisions on a parent's gender. Yet, in many cases mothers are more likely than fathers to be awarded primary residential parent status. This happens not because of bias, but because mothers still perform most parenting duties in our society.

Of course, which parent has spent more time caring for the children will depend on the couple and their unique family circumstances. In most cases, it is the care-giving role performed during the couple's marriage or time as a couple, not the party's gender, that gives one parent an advantage.

Can a Child Express a Custody Preference?

In a Tennessee divorce with child custody at issue, a judge may consider the child's preference. Specifically, Tennessee custody laws require a judge to consider the wishes of a child over 12. This doesn't mean that the child's custody preference will control the outcome of the case.

Instead, a child's preference is one of several factors a judge will weigh in determining a child's best interests. If the child is under 12, a judge can still consider the child's wishes. However, an older, more mature child's preference will be given more weight. See TN Code § 36-6-106 (2020).

Will a Judge Keep Siblings Together?

The status quo is important in parenting decisions, especially where a child seems to be well adjusted. This often means that a judge will keep siblings who were raised together in the same household after a divorce. 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.

In certain cases a judge may split siblings, but there must be a compelling, reasonable, and practical reason for doing so. Even if the divorcing parents agree to split siblings, the court may reject the proposed arrangement unless it serves the children's best interests.

What Impact Does a Parent's New Partner Have on a Parenting Plan?

A judge may consider a child's living situation as part of a best interests determination. If a parent has a new significant other with a history of abuse or instability, that factor may weigh against that parent a custody case.

In other words, if 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 Nonresidential Parents in Tennessee?

A parent who does not have primary parental responsibility over the child is still entitled to regular communication and a relationship with that child. Usually this means at least one weeknight visit and visits every other weekend. Specifically, when a child is not in that parent's care, the other parent is entitled to telephone calls with the child twice per week.

The nonresidential parent may also receive school and medical records for the child. This includes copies of the child's report card, attendance records, and test scores. A parent without decision-making responsibilities over the child is still entitled to make emergency medical decisions while the child is in that parent's care.

Can the Primary Residential Parent Move Out of State with the Child?

It depends on the situation. A parent's move may not be motivated by vindictiveness and the move must serve the child's best interests. The parent planning to relocate should provide timely notice to the other parent before the move.

A parent seeking to prevent the move may petition the court for a change of designation of primary residential parent or ask the court to deny the child's relocation.

A judge will consider each parent's current parenting time schedule, the relocating parent's reasons for the move, and the child's potential educational and developmental opportunities in the new location.

When Can I Modify the Primary Residential Parent Designation?

A parent can file a petition to modify if there's been a material change in circumstances and the modification would be in the best interests of the child. For example, a child's desire to live with the other parent is not usually enough to justify a change in custody.

Likewise, a parent's minor misconduct such as an affair or public intoxication may not be enough to justify a change unless those actions directly impacted a child's best interests.

Yet, if a child is doing poorly in school, the child is being abused, or the residential parent has taken a job requiring an international relocation, a judge may adjust the primary residential parent designation. In some cases, a judge (or the terms of the permanent parenting plan) may require the parents to mediate these disputes before heading to court.

How Do Parenting Plans Affect Child Support?

In most circumstances, child support will be ordered unless the child resides with each parent for a roughly equal amount of time and the parents have equivalent incomes. The primary residential parent typically receives child support payments from the other parent.

Can a Parent Be Denied Visitation for Failing to Pay Child Support?

No. Neither parent can interfere with the other parent's visitation or parenting. A parent's 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. A parent could be sanctioned by the court if he or she withholds visits based on the other parent's failure to pay support.

Can a Parent Stop Paying Child Support if the Other Parent Denies Visitation?

Child support follows the child and a parent cannot unilaterally stop paying support. The parent being denied visitation should file a petition with the court to enforce his or her parenting time rights. A parent's persistent violation of a court-ordered right to visitation or parenting time can be grounds for changing the primary residential parent designation.