When a marriage comes to an end, everyone involved feels the emotional impact of the divorce that follows. Ideally, the parties are able to reach an amicable marital settlement agreement without the need for contentious, and costly, litigation. When there are minor children of the marriage, however, the odds of a divorce turning adversarial often increase. In fact, custody disputes are at the top of the list of the most common reasons why a divorce becomes antagonistic. To make matters worse, custody issues can crop up years after a divorce is finalized as well. If you find yourself in a situation where custody of your minor children is at stake, the most important thing you can do for you, your kids, and your future is to retain the services of an experienced La Vergne child custody lawyer. Given the highly personal and individualized nature of custody matters, specific questions and/or concerns should be discussed with your attorney. There are, however, some common questions that parties involved in custody issues often ask. A La Vergne child custody lawyer has provided answers to five of the most commonly asked custody related questions.
- What is the difference between physical and legal custody? Most states, including the State of Tennessee, actually separate the issue of custody of a minor child into two parts – physical and legal custody. Physical custody refers to the parent with whom the child will live the majority of the time. Legal custody refers to a parent’s right to decide, or have input regarding, major issues related to the child, such as what school the child will attend, what physician will treat the child, and what religion the child will practice. For practical reasons, courts often grant one parent sole physical custody of a minor child because it requires a tremendous amount of cooperation between the parents to make a joint physical custody arrangement work. On the other hand, courts tend to favor joint legal custody under the theory that, absent a good reason not to, courts should encourage both parents to participate in major decisions related to the child.
- If we cannot agree, how will a judge decide who gets custody? When the parents of a minor child are unable to reach an agreement with regard to custody of the child a court is forced to decide the issue. Typically, the court will appoint a Guardian Ad Litem to help make the determination. A Guardian Ad Litem (GAL) is usually a local attorney who has specialized training in the legal issues involved in child custody disputes. The GAL’s job is to represent the best interests of the child throughout the proceedings. The court may also order home studies, background checks, drug and alcohol testing, and anything else the court thinks may help make the right decision. Tennessee Code 36-6-106 sets forth the factors the court may consider when deciding custody of a minor child.
- If I have custody of my child, can I move out of state? Most custody orders specifically prohibit the parent with custody of the child from relocating more than a specified distance without the other parent’s approval. If your custody order is silent on the issue, Tennessee Code § 36-6-108 will likely govern. That statute requires an agreement or court approval if you wish to relocate more than 100 miles away from your current residence if the other parent is spending intervals of time with the child. Relocating without prior approval is a serious violation of the law.
- Can my ex refuse to let me see my kids because I’m behind on child support? No. Contrary to what many people believe, child support and visitation are not tied together. If you are behind on your child support you could face a number of negative consequences, up to and including spending time in jail; however, a child support arrearage is not an excuse to keep your child from you.
- Can I modify the court’s original custody order? Maybe. When it comes to parenting a child, circumstances often change as time goes by, often prompting the need for a change to the court’s original orders relating to custody of the child. In the State of Tennessee, the standard applied to requests to modify a standing custody order is “a material and substantial change in circumstance that affects the best interest of the child.” Courts prefer not to change custody orders because it is disruptive to the child. As such, the court will apply that standard to determine if a petition to modify will even be considered.
If you are involved in a child custody matter in the State of Tennessee, it is in your best interest to consult with an experienced La Vergne attorney at Bennett, Michael & Hornsby. Contact the team today by calling 615-898-1560 to schedule your appointment.
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