The inability to agree on custody of the minor children is frequently why a divorce becomes adversarial. In fact, child custody often turns a simple divorce into a court battle that costs both sides a considerable amount of time and money. If you are planning to divorce in the State of Tennessee and you foresee the possibility of a custody dispute, it helps to know what to expect. Toward that end, a Murfreesboro divorce attorney at Bennett, Michael & Hornsby discusses the likelihood of being awarded sole custody of your children in a divorce.
Understanding the Current State of the Law
At one time, courts referred to legal and physical custody of minor children during a divorce – and the mother was typically awarded physical custody absent a showing that she was unfit. Today, both the term “custody” and the concept that mothers are better able to raise children are outdated, and the law reflects that fact.
In Tennessee, the term Primary Residential Parent (PRP) is used to refer to the parent with whom a child lives more than with the other parent. The other parent is the Alternative Residential Parent, or ARP. What was once referred to as “legal custody,” referring to decision making authority, is now called just that – decision making authority. You could be the PRP but share decisions-making authority with your child’s other parent or you could be awarded final decision-making authority. If your hope is to be granted final decision-making authority and be the PRP you will face an uphill battle because the law starts with the presumption that both parents are competent and capable of parenting their children.
What Can a Judge Consider When Deciding Custody?
If “custody” of your children becomes a contested issue in your divorce, the court must make decisions using the “best interest of the children” standard. In addition, a judge may consider the factors found in Tennessee Code Section 36-6-106 when making custody related decisions, including:
- 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 non-perpetrating 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.
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person.
- 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.
Contact a Murfreesboro Divorce Attorney
If you believe that custody of your minor children is likely to be an issue in your divorce, it is important that you consult with an experienced Murfreesboro divorce lawyer to ensure that your rights are protected throughout the divorce process. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your appointment.