Divorce is rarely easy. In fact, divorces frequently result in contentious and acrimonious litigation between the parties. One of the most common contested issues in a divorce is the issue of custody of any minor children. If you are heading for a divorce, and you already know that you want sole custody of your children, you are probably wondering how the court decides if sole custody is warranted in Tennessee. A Murfreesboro child custody attorney from Bennett, Michael & Hornsby explains what a judge will likely consider when deciding whether or not to grant you sole custody of your children
Changing Parental Roles
As attitudes and beliefs regarding the role of parents have changed, it has become more popular for fathers to seek sole custody of their children in a divorce. That, in turn, results in more contested custody battles. It wasn’t all that long ago that a father seeking sole custody was virtually unheard of in the U.S. Both society and the law, however, have changed considerably in recent years. Today, it is common for fathers to seek joint custody of their children and it is no longer unusual for a father to even pursue sole custody. This viewpoint is even codified in Section 36-6-106(d) of the Tennessee Code as follows:
It is the legislative intent that the gender of the party seeking custody shall not give rise to a presumption of parental fitness or cause a presumption or constitute a factor in favor or against the award of custody to such party.
Sole Custody Is an Uphill Battle
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 grant you sole custody can be an uphill battle.
Understanding the Terminology
Although the term “sole custody” continues to be used by many people, the law actually did away with such terminology some time ago. The law also changed with regard to what it means to have sole custody of a child. 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 decision-making authority with your child’s other parent or you could have all final decision-making authority. If you are pursuing “sole custody” it likely means you want to be the PRP and have final decision-making authority.
Factors a Judge Will Consider When Deciding Custody
Judges are required by law to begin with the presumption that both parents are competent and capable of parenting their children. When considering custody issues the courts will consider the factors found in Tennessee Code Section 36-6-106, 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; 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.
Contact a Murfreesboro Child Custody Attorney
If you considering a divorce in Tennessee, and you want to pursue sole custody of your minor children, it is imperative that you consult with an experienced child custody attorney to discuss your legal options. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your appointment.