When a divorce involves children, one of the most important – and often most contentious – aspects of the divorce process is determining who the children will live with and when the other parent will have parenting time with the kids. Ideally the parents can work this out without protracted litigation; however, if one parent wants to prevent the other parent from spending any time with the children it can lead to heated litigation. A Murfreesboro divorce attorney at Bennett, Michael & Hornsby discusses what is likely to happen if you want to prevent your ex from seeing the children at all.
Modern Post-Divorce Parenting
As societal views on divorce and parenting have evolved, so has the law. Even the terminology has changed. Sole custody as a legal term was changed and Primary Residential Parent (PRP) was created — and PRP means something different than sole custody. PRP refers to the parent with whom a child lives more than with the other parent. The other parent is the Alternative Residential Parent, or ARP. The other part of “custody” involves decision making authority. You could be the PRP but share decisions-making authority with your child’s other parent or you could have all final decision-making authority.
The Parenting Plan Requirement
When the parents of minor children divorce, the law also now requires them to submit a “Parenting Plan” as part of the divorce process. Among other things, the Parenting Plan addresses the PRP and ARP designations and typically includes a parenting time schedule to ensure that the ARP spends time with the children post-divorce. Although there is a standard parenting time schedule, parents can deviate from that schedule by agreement or by court order.
Asking for Sole Custody of Your Children
Asking to be the PRP in a divorce is common. Asking that the other parent not be awarded any parenting time with the children, however, is not common. The law starts from the rebuttable presumption that both parents should continue to be part of a child’s life after a divorce. Along with requiring both parents to remain financially responsible for a minor child after a divorce, the law also encourages both parents to actively parent a minor child after a divorce. Consequently, asking the court to prevent the other parent from spending any time with the children will be a challenging legal battle. Every decision a judge makes that involves a minor child must be made with the “best interest of the child” as the guiding principle. The court may also consider the following:
- 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; and
- 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.
When Will a Court Prohibit Visitation?
Every case is unique; however, as a rule a parent wishing to prohibit all parenting time with the other parent will need to demonstrate that allowing visitation would put the child in danger or otherwise not be in the child’s best interest. Even then, the court may prefer to try supervised visitation before taking away all visitation rights.
Contact a Murfreesboro Divorce Attorney
If you are considering divorce, consult with an experienced Murfreesboro divorce attorney at Bennett, Michael & Hornsby as soon as possible to discuss your legal options. Contact the team today by calling 615-898-1560 to schedule your free appointment.