Going through a divorce can be a frightening and stressful process that is fraught with uncertainty. Everything the parties own must be divided as well as all debts the couple incurred while married. If you are a parent, however, the most emotional part of a divorce comes when it is time to decide issues related to the children, such as determining who will have primary custody and creating a parenting time schedule. If it appears that custody may be contested, and your child is old enough to have an opinion, you may be wondering if the court will listen to that opinion. To provide some insight, a Tennessee child custody lawyer discusses when a child’s wishes will be considered in a divorce.
Tennessee Divorce Basics
The divorce process can be as simple and amicable as the parties make it – or as convoluted and adversarial as they make it. Although there are plenty of opportunities for conflict in a divorce, custody of minor children is a common reason for a divorce to turn contentious. Ideally, of course, the parents of a minor child are able to agree on issues relating to custody and parenting time with the minor child and reduce those agreements to writing in a Parenting Plan that is required to be submitted to the court. Unfortunately for everyone involved, that doesn’t always happen. When the parents cannot agree on who will be the primary residential custodial parent, the court will usually order the parties to mediation to attempt to reach a resolution. If mediation doesn’t work, however, the issues will eventually be settled by setting the matter for trial.
Will My Child’s Wishes Be Considered?
If your child is old enough to be aware of what is happening – and that age is likely much younger than you think – he or she may also have strong opinions about which parent he/she wishes to live with post-divorce. That, in turn, may lead you to wonder if the court will listen to those opinions and wishes. After all, the outcome of the custodial battle will certainly impact your child so why shouldn’t he/she be entitled to an opinion on the matter, right?
In the State of Tennessee, a judge is required to make all decisions in a divorce that involves a minor child using the “best interest of the child” standard. As the term implies, this simply means that a judge must focus first on what a child needs, not what the parents need or want in a divorce. Tennessee Code 36-6-106 governs child custody. In that section, the law does address the issue of the wishes of a minor child when custody is contested. The law specifically states that when custody of a minor child is at stake, the judge may consider “The reasonable preference of the child, if twelve (12) years of age or older.” The law goes on to state that “The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children.”
Should I Let My Child Testify?
Just because your child is old enough for the court to hear his/her testimony does not automatically mean it is a good idea for him/her to testify. Keep in mind that while your child might be testifying for you, that will likely be perceived as testifying against the other parent. Doing so can be traumatizing for your child and may be detrimental to your child’s relationship with the other parent. If your child does wish to express his/her opinion, but you are concerned about the emotional impact of doing so, you may wish to discuss the possibility of an “in camera” interview with your attorney. This allows the child to discuss the issues with the judge in his/her chambers instead of in open court which can be far less stressful and emotional for your child while still accomplishing the same objective.
Contact a Child Custody Lawyer
If you have additional questions or concerns about your minor child testifying in your child custody battle, it is in your best interest to consult with an experienced child custody lawyer as soon as possible. Contact the team at Bennett, Michael & Hornsby today by calling 615-898-1560 to schedule your appointment.