Custody

Initial Determination of Child Custody

Tennessee Law

The court will make an initial custody determination regarding custody (Change of Custody uses different standards.) of a minor child based upon the best interest of the child. The court will consider all relevant factors including the following factors:

(1) The love, affection and emotional ties existing between the parents and child;

(2) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary care giver;

(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

(4) The stability of the family unit of the parents;

(5) The mental and physical health of the parents;

(6) The home, school, and community record of the child;

(7) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(9) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child.

(10) Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.

Tennessee law precludes consideration of gender to determine custody. Prior to July 1, 1997, in the case of a child of "tender years" (usually age seven and under) the gender of the parent could be considered as a factor in determining custody by the court. This is no longer the law. Effective July 1, 1997 the tender years doctrine was abolished by statute. Further, there are no hard and fast rules that apply but in deciding custody issues the court will use a comparative analysis of each parent and award custody based upon that comparison considering all factors. The court out of necessity, however, must consider each custody hearing on a case by case basis and you may not always rely on what a court does in one instance to what it may do in another with different circumstances.

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A custodial parent, including primary physical custodians in joint custody cases, will be allowed to remove a child from Tennessee, unless the non-custodial parent can show, by a preponderance of the evidence, that the custodial parent's motives for moving are vindictive--that is, intended to defeat or deter the visitation rights of the non-custodial parent. This is an almost impossible burden.