Key Takeaways
- An unmarried father does not have custodial rights until he petitions the court.
- You cannot withhold visitation or parenting time if the other parent does not pay child support.
- The court enters a permanent parenting plan as part of a custody order or the final judgment.
- An experienced family law attorney can guide you through a custody dispute.
Tennessee’s requirements are strict for both parties when it comes to child custody. The parents must act in the best interests of the children at all times. Tennessee prefers that the parents share parenting time equally but will deviate from that when circumstances warrant.
If you believe an impending divorce will result in a custody battle, contact an experienced family law attorney to advise you of your rights and guide you through the custody battle ahead.
Types of Child Custody in Tennessee
Tennessee classifies child custody into four categories. Each parent may have one or more types of custody. The court will order custody arrangements that are in the children’s best interest – not necessarily what is “best” for the parents.
- Legal custody: One or both parents make decisions regarding the child’s upbringing, including medical, educational, and religious choices
- Physical custody: Time-sharing with one or both parents
- Sole custody: One parent has legal and physical custody. In some cases, one parent may have legal custody, while both have joint physical custody
- Joint custody: Both parents have physical custody. The primary residential parent is where the child spends most of the time
If the parents are unmarried and no court has entered an order for custody—legal and physical custody are the mother’s by default. The unmarried father must petition the court to establish his rights. The court can address custody rights in a parenting plan.
Factors Determining Child Custody in Tennessee
If an agreement cannot be reached the court will determine custody. Tennessee courts consider several factors when deciding custody and always prioritizes a child’s best interests. Some of the factors courts consider include:
- The child’s wishes: If the child is at least 12 years old, the court may ask about their preferences. You can ask the court to consider a younger child’s preferences, but the court may not always consider them.
- The ability of each parent to provide a stable and loving home environment: An unstable environment is never in the child’s best interest. If you cannot provide a stable environment, the court may only allow limited or supervised visitation.
- The physical and mental health of each parent: A parent who is in poor physical or mental health cannot properly take care of a child. However, if the disability is physical, the court may still order joint physical and legal custody.
- A history of domestic violence or substance abuse: Under certain circumstances, the court might still allow a parent with a history of domestic or substance abuse to share custody. However, if the abuse includes child abuse, the court may not allow visitation or may allow only supervised visitation.
- The child’s relationship with siblings and extended family: If the court determines that you are not likely to allow your children to continue with relationships with your ex-spouse’s extended family, it could affect your visitation rights.
- The willingness of each parent to facilitate a strong relationship between the child and the other parent: If a parent refuses phone calls, emails, or texts or has a tendency to ignore pickup and drop-off times, it shows that the parent is not willing to give the child access to the other parent. This can significantly affect who gets physical custody.
- The child’s adjustment to home, school, and community: If one parent moves far enough away that the child has to change schools, the court is more apt to give custody to the parent living where the child currently resides. Therefore, the child does not have to go through a major adjustment to a new home, a new school, and a new community at the same time.
- The parents’ work schedules and childcare arrangements: When a parent’s work schedule interferes with the parent’s ability to be with the child most of the time, the other parent can get primary physical custody.
- The character and behavior of other adults living in the parent’s home: If the other adults in your home show tendencies to abuse substances, have a criminal record, or exhibit behavior that is not in the best interest of the children, the other parent can get primary residential custody.
Establishing Paternity
If the parents of a child are not married, the father can sign a voluntary acknowledgment of paternity. However, that does not award him visitation rights. The father must have a court order to gain custody and visitation rights.
If you doubt that the child is yours, do not sign the voluntary form. You can ask the mother to submit to a paternity test. If she refuses, you may need the court to intervene if you want to see your child or if you want to determine if the child is yours.
If both parties agree that you are the father, you must obtain a court order for paternity as soon as possible. If delayed, you will not have visitation rights without it. The paternity order is easier to obtain when you are on good terms with the mother, rather than in the midst of a full-fledged custody battle.
Once the voluntary form is signed, you still must petition the court to establish paternity. Once completed and you have acquired a court order—the court will sign off on a parenting plan that outlines your custodial rights and enter a child support order.
Custody Orders and Modifications in Tennessee
In Tennessee, you can modify custody orders, but you must prove that there has been a substantial and material change of circumstances since the inception of the original order. Some of the circumstances a court will consider include:
- Failure to follow the parenting plan
- Failure to follow a custody order
- The parenting plan is no longer in the best interests of the children
- The other parent is indicted for child sexual abuse, aggravated child abuse, or severe child sexual abuse
- Significant changes to the child’s needs, including changes related to age
- Substantial changes in a parent’s working or living conditions affect parenting
You do not have to prove significant harm to the child – only that it is in the best interests of the child’s day-to-day living to modify custody.
Tips for Seeking Custody in Tennessee
Obtaining custody is complex, even under the best circumstances. Controlling your behavior before and during the divorce can increase the odds of obtaining custody.
First, do nothing to sabotage your chances of getting custody, such as speaking badly about your ex or shouting at them or the kids. Throughout your marriage and during the pendency of the divorce, you can increase your chances by:
- Documenting interactions with your children and their mother
- Maintaining a stable home environment, especially if you are separated
- Implementing positive parenting practices
- Being respectful when communicating with your ex or soon-to-be ex
- Focusing on the child’s needs and well-being, including allowing communication with their mother while the children visit you
- Complying with court orders and parenting plans. That means no missing pickup and drop-off times or being constantly late
- Being prepared to compromise and cooperate with the other parent to create smoother co-parenting
- Communicating with the other parent about issues relating to the children, including school issues
For example, if the child does not finish their homework, let the mother know the reason why. It should be a valid reason – not because you wanted to hang out at the park. While that is a valid reason, it is not responsible.
Why Work with Cordell & Cordell
You may need experience to back you up when going through a custody battle. The experienced child custody attorneys at Cordell & Cordell can guide you through even the most contentious custody battles and help protect your parental rights.
Client Experience
“The whole case start to finish he did exceptionally well. He was timely with his responses and always found time to talk to me. He was really informative and kept me in the loop. Kevin is a really cool guy, friendly, helpful and always made sure I was informed of what the best options were while also letting me know that he would proceed however I wanted. It was really great working with him.”- Antonio Q.
“Victoria is the very definition of perfection! She helped me so much in so many different ways that I can’t count. She always made me feel like I was her only client. She responded with only information that I needed and responded in a timely manner. I don’t think I would have ever been treated this way if it was anyone else. I was referred by another client of the firm. He told me that your firm did his case and that he wouldn’t use anyone else. I second that! If I ever (and I hope I don’t) have to use your services again, it would be because of your people who have been working hard and professionally unmatched!!”- Jeffrey M.
Have a Child Custody Case? Call Us.
Cordell & Cordell is a national family law firm that guides individuals through a range of family law issues. Contact our team today at 866-323-7529 or fill out our online contact form to schedule an initial consultation.
Disclaimer: This page serves as a resource and is not considered legal advice.
Frequently Asked Questions
Tennessee recently enacted new child custody laws. Effective July 1, 2024, there is now a legal presumption that joint legal custody and equal parenting time schedules are in the best interests of minor children.
However, the new law does not apply if a court enters an order of protection involving the children. Should a court not award equal parenting time, it must explain why it deviated from the presumption.
If a Tennessee court feels that the parents are not meeting the child’s best interests or the children are not adequately protected by the parents, it may appoint an attorney to represent the child’s best interests during the custody proceedings. The guardian ad litem is a licensed attorney.
While divorce is never easy for children, the courts do whatever they can to make it less challenging. Tennessee’s parenting plan law requires both parents work together to meet their children’s needs.
The law outlines how parents will co-parent to raise their children after separation. It also provides decision-making rules for the children. The parenting plan also requires the parents—or the court—to create a schedule for parenting responsibilities that includes the custody determination or agreement.
The parents must follow the parenting plan, as it becomes part of the final judgment of dissolution of marriage or is incorporated into custody orders.
Tennessee does not use a fixed formula for granting joint custody. Instead, courts base decisions on each couple’s unique circumstances and what is in the child’s best interests.
Suppose the court deviates from the new parenting law for custodial parents, which is as close to dividing parenting time in half. In that case, the primary residential parent is the party with whom the child lives for over 50 percent of the time. Even with 50/50 residential custody, the court may name one parent as the primary residential parent.
Courts cannot make custody decisions based on gender. The primary residential parent status is awarded based on the parent with the most time to spend with the children.
Both parents are financially responsible for their children, so both must contribute financially. Tennessee utilizes the income shares model, establishing that both parents’ incomes determine the support amount one parent pays the other. The paying party depends on several factors, including each parent’s gross income and the length of time children spend with each parent. In most cases, the primary residential parent receives the payments, especially if custody is unequal.
Because withholding visitation is not in the best interest of the children, a parent cannot prevent the other parent from seeing and communicating with his or her children even in the event of non-payment of child support. The parent must file a child support action with the court to enforce the child support order.
Written by Joseph E. Cordell
Joseph E. Cordell is the Principal Partner at Cordell and Cordell, P.C., which he founded in 1990 with his wife, Yvonne. Over the past 25 years, the firm has grown to include more than 100 offices in 30 states, as well as internationally in the United Kingdom. Mr. Cordell is licensed to practice in the states of Illinois and Missouri and received his LL.M. from Washington University in St. Louis, Missouri. Joseph E. Cordell was named one of the Top 10 Best Family Law Attorneys for Client Satisfaction in Missouri.
