Although it can be difficult, divorcing parents should try to work together to determine the best parenting plan (custody and visitation schedule) for their family. If parents can’t agree, a judge will have to decide physical custody, legal custody, and parenting time.
What Is Custody?
Legal custody refers to a parent’s right to make decisions regarding the child’s education, health, and general welfare. Common issues that arise during legal custody disputes often include who will decide the child’s:
- education, and
- major medical decisions.
The court may award sole legal custody (to just one parent) or joint legal custody (both parents). Sole legal custody is uncommon but may occur in situations where there is a history of domestic violence, drug or alcohol abuse, or absence of a parent. If parents agree that it is best, and present a joint custody parenting plan to the court, the court must approve the plan unless there is evidence that it is not in the child’s best interest.
Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody. If a court awards one parent sole physical custody, the court refers to them as the primary residential parent. The other parent is the alternative residential parent or noncustodial parent.
Regardless of the title given to each parent, both parents have the right to make day-to-day decisions about the child when the child is with them.
What Is Parenting Time?
If a court awards one parent most of the parental responsibilities, the next step is to determine a parenting time or visitation schedule for the noncustodial parent and the child. Parents should work together to determine a schedule that will work best for everyone, especially the children. Most families have unique scheduling needs, so when creating a calendar for your family, you should consider:
- mid-week visitation
- weekend visitation
- school breaks, and
- which parent will be responsible for transportation costs.
Although the alternative residential parent will have less physical time with the child, Tennessee courts have made it very clear that the noncustodial parent has the right to:
- unimpeded telephone contact with the child twice per week
- send mail, without the other parent destroying it
- receive notice and information on the child’s hospitalizations, major illnesses, or death
- receive school and medical records
- to be free of derogatory remarks made by the other parent
- the right to receive 48 hours’ notice of any activity that the child will participate in
- to receive notice of any out-of-town vacation, including an itinerary, and
- the right to participate in the child’s education.
How Does the Court Determine Custody?
Courts recommend and prefer that parents work together to determine their ideal custody arrangements. If parents can’t agree, a court will decide custody based on the best interests of the child. Before the court will begin the process of a custody hearing, parents must prove that they have:
- completed a 4-hour parenting class
- participated in child custody mediation, and
- have negotiated the parenting plan in good-faith.
If you can’t agree, despite your good-faith efforts, a judge will have to decide custody based on the best interests of the child. Both parents will have the opportunity to submit evidence that supports their requests for custody.
During a custody hearing in Tennessee, a judge will consider:
- the strength, nature, and stability of the child’s relationship with each parent
- the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and both parents
- whether either parent has refused to attend court-ordered parent education classes
- each parent’s ability to provide the child with food, clothing, medical care, and education
- the degree to which a parent has been the primary caregiver
- the love, affection, and emotional ties existing between each parent and the child
- the child's emotional needs
- each parent’s moral, physical, mental, and emotional fitness
- the child’s relationship and interaction with siblings and other relatives
- the length of time the child has been in a stable environment
- evidence of physical or emotional abuse to the child or the other parent
- the character and behavior of any other person who resides in the parent’s home
- the child’s preference, if the child is at least 12 years old
- each parent’s employment schedule, and
- any other factor that the court believes is relevant.
The judge will decide custody based on the evidence presented by each parent. Once the court creates a parenting plan, both parents must follow it. If either parent wants to change the arrangement, they will need to ask the court for a hearing.
Modification of Custody and Visitation
Regardless of the state where you live, the priority in custody cases is always the best interest of the child. Stability is essential for children, but parenting plans aren’t always permanent. If a parent can show that there has been a material change of circumstances since the last custody order, the court may modify custody or parenting time.
A material change in circumstances can be difficult to establish. To prove this, the parent needs to show:
- the change occurred after the entry of the current order
- the change was not known or reasonably anticipated when the current order was entered, and
- the change is one that affects the child’s well-being in a meaningful way.
If a parent can show a substantial change in circumstances, the court will re-evaluate custody and parenting time using the best interest factors.