For the parents of a minor child, the most difficult aspect of a divorce is often the issue of custody. It is no longer a foregone conclusion that a child will live with the mother – and more and more fathers are asking to be the “primary residential parent” when they litigate a divorce. What about the child’s wishes? Should they be considered? A Murfreesboro divorce attorney at Bennett, Michael & Hornsby discusses the role of a child when custody is at stake during a divorce.
Understanding Custody in a Tennessee Divorce
Although you are likely familiar with the terms “custody” and “visitation” in the context of a divorce involving minor children, the law in Tennessee no longer uses those terms. In fact, the law takes a very different approach to children in the context of a divorce than it did not all that long ago. Instead of awarding one parent “custody” and the other parent a handful of visitation days each month, the law now aims to establish an agreement or order that allows the parents to continue to co-parent the child post-divorce.
Can My Child’s Wishes Be Considered When Deciding Custody Issues?
If you child is old enough, you may be tempted to ask your child who he/she wants to live with when the divorce is final. When it comes to a child’s wishes in a custody battle, it is important to understand whether a child can (legally) participate and whether the child should do so.
Tennessee law now says that a court shall consider the “reasonable preference of the child, if twelve (12) years of age or older.” The law also says that a 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.” In short, this means that if your child is at least 12 years old, the court must consider his/her wishes if you choose to allow your child to testify. If your child is younger than 12, the court has discretion when deciding whether to consider the child’s wishes. Either way, keep in mind that a child’s stated preference is only one factor among many used to determine what is in the “best interest of the child.”
Should My Child’s Wishes Be Considered When Deciding Custody Issues?
Just because the law allows a judge to consider your child’s preference when determining custody does not mean that asking your child to choose one parent over the other is a good idea. While there are situations where very good reasons exist for a child to prefer one parent over the other (abuse, neglect, absent parent etc.), in most divorces it simply is not good for a child’s emotional stability to ask him/her to state a preference. Moreover, once a child “chooses,” it almost certainly creates a rift in the relationship with the parent that wasn’t “chosen.” No matter how intelligent and mature your child is, he/she is still a child. As such, your child is not yet capable of understanding the potential lifelong ramifications of expressing a preference for one parent over the other in a divorce. For these reasons, it is imperative that you think long and hard – and consult with your attorney – before agreeing to allow your child to be part of your divorce.
If you have legitimate concerns about your spouse’s ability to act as your child’s primary residential parent, you will likely be able to make your case to the court with testimony and evidence that does not require your child to testify. This is one of the many reasons why it is imperative that you have an experienced divorce attorney on your side if you believe that custody of your minor child will be a contested issue in your divorce.
Contact a Murfreesboro Divorce Attorney
If you have additional questions or concerns about allowing your child to express his/her wishes in your divorce, consult with an experienced Murfreesboro divorce attorney at Bennett, Michael & Hornsby as soon as possible. Contact the team today by calling 615-898-1560 to schedule your free appointment.
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