When a divorce involves a minor child, the final court order must include a provision that covers who will have primary custody of the child. If your final order gave primary custody of your child to their other parent, what happens if your child now wants to live with you? Can you modify the divorce decree? Does your child have the right to decide with whom he/she lives? A Murfreesboro custody lawyer at Bennett, Michael & Hornsby discusses
modification of custody based on the wishes of the child in Tennessee.
Tennessee Custody Laws
Although we continue to use the term “custody” in everyday language, the correct legal terminology used to refer to the role of both parents post-divorce in Tennessee is “primary residential parent” and “alternative residential parent.” As part of the divorce process, the parents of a minor child must negotiate a parenting plan that is approved by the court. The parenting plan must designate which parent is the primary residential parent, meaning the parent with whom the child lives most of the time. The plan must also include a “parenting time” schedule that covers when the child will spend time with the other parent (the alternative residential parent). The terms of your parenting plan are court orders which must be followed or you risk being held in contempt of court. That means that if your child now wants to live with you, but your divorce granted your former spouse primary residential parent status, you cannot simply let your child live with you. You will need to modify the original court order first.
Can the Terms of the Divorce Decree Be Modified?
Unlike most other “final” orders of the court, a final divorce decree is frequently modified after the fact. This is particularly true when the divorce involved minor children because circumstances are likely to change with the passage of time. It is, therefore, possible to modify the terms of your divorce; however, if you want to become your child’s primary residential parent it will not be an easy task unless the other parent agrees to the modification. If the other parent does not agree to the modification, a judge will have to decide the issue. All decisions involving minor children that are made by a judge must be made using the “best interest of the child” standard. In addition, for the court to grant you primary residential parent status, you will have to prove a “change of circumstances which materially alters the child’s well-being.”
Do My Child’s Wishes Matter?
For a parent, it can be heart-wrenching to know that your child wants to live with you, but the law says he/she cannot. The law tries to take a balanced approach when it comes to the wishes of a child regarding custody. On the one hand, the law acknowledges that children can (and do) have strong feelings about where they want to live and with whom. On the other hand, the law also recognizes the potential for coercion or manipulation by a parent when custody is disputed, and the child’s wishes are considered. Tennessee Code Section 36-6-106(7) tries to strike that balance by considering “The reasonable preference of the child, if twelve (12) years of age or older.” In addition, “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.”
This does not mean that your child’s wishes alone will determine the outcome of a request to modify custody. It only means that the judge will consider your child’s wishes if he/she is old enough. Generally, the older the child is the greater the weight the court will give to his/her preference.
Contact a Murfreesboro Custody Lawyer
If you have additional questions about modifying your divorce decree because your child wants to live with you, it is important that you consult with an experienced Murfreesboro custody lawyer to discuss your legal options. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your free appointment.
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