There was a time, not all that long ago, when it was unusual for a father to have custody of a minor child and virtually unheard of for a father to actually fight for custody of a child. If the mother was deceased, seriously ill, or abandoned the family the father might end up with the children out of default; however, fathers rarely ever tried to get custody of the children in a divorce – and if they did they rarely succeeded unless there was extremely strong evidence that the mother was unfit. Fortunately for father, those days are long gone. If you are a father and are contemplating divorce, you may be wondering whether it is possible for you to get custody of a child in a Tennessee divorce. Given the highly personalized nature of divorce and the myriad of facts and circumstances that go into deciding custody issues, you should consult an experienced Tennessee child custody lawyer for an evaluation of your unique situation; however, the good news is that it is certainly possible for a father to be granted custody of a child in a divorce in Tennessee.
No More Presumptions
At one time, both the law and society operated under the presumption that a mother should have custody of minor children when the parents divorced. That presumption could be rebutted; however, only with strong evidence that the mother was unfit, meaning she abused or neglected the children or was completely incapable of caring for them. The law no longer operates under that presumption and society has slowly begun to accept the idea of fathers being the primary caregiver for children.
Factors that Can Be Used to Decide Custody in Tennessee
Ideally, when the parents of a minor child go through a divorce they are able to reach an amicable agreement with regard to custody and visitation with any minor children of the marriage. When that is not possible, however, a court must make the decision. In the State of Tennessee, Tennessee Code Annotated Section 36-6-106 governs with regard to the factors a court may consider. The court must use the “best interest of the child” standard at all times when making custodial decisions. In addition, a court may consider the following factors if they are applicable:
- The love, affection and emotional ties existing between the parents or caregivers and the child.
- The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver.
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody.
- The stability of the family unit of the parents or caregivers.
- The mental and physical health of the parents or caregivers.
- The home, school and community record of the child.
- The reasonable preference of the child, if twelve (12) years of age or older.
- 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.
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings.
- The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child.
- Each parent or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.
None of the allowable factors take into consideration whether the parent in question is the father or the mother. As such, a father has just as much right, and every bit as good of a chance, to be the primary custodial parent post-divorce in Tennessee as the mother does.
If you are a father who wishes to seek custody of your children in an impending divorce, it is imperative that you consult with the experienced Tennessee child custody attorneys at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.
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