Nothing about divorce is pleasant for most people. Determining child custody after divorce may be the most challenging part for parents. If you are like most parents, you want your children to live with you full-time, as does your spouse. Realistically, that rarely happens, though. What happens when parents disagree about custody, then? Who decides? What factors are considered in that decision? Can custody be changed in the future? At King Law Offices, our experienced family law attorneys can answer these and other custody questions regarding custody in Tennessee. Call (888) 748-5464 today to schedule a consultation.
Two Ways to Decide Child Custody After Divorce
While many people believe the court determines child custody after divorce, this is not necessarily the case. Parents may also be able to decide on custody. However, in order to explore all options and come to an agreement that is best for the children, parents should be aware of the different types of custody they can consider.
Two Ways to Decide Child Custody After Divorce
In most states, including Tennessee, child custody can be decided in two ways. The first is for the parents to agree. If the parents can decide custody themselves, the court will typically approve their agreement unless there is a significant issue, in which case it becomes part of the court order that the parents must follow.
The second way custody can be determined is by the court’s decision. If the parents cannot agree, the court will consider the best interests of the children and decide on a custody arrangement that is best for the children. In some cases, the court may bring in a child psychologist to evaluate the situation and recommend the best custody arrangement for the child. Whether the parents agreed on custody or the court decided for them, custody orders can be modified in the future if circumstances change significantly.
Types of Child Custody
There are different types of child custody. First is physical and legal, in which physical custody refers to who physically has custody of the child, and legal custody indicates who makes decisions regarding the child. Then there is joint and sole custody, in which joint (or shared) custody means both parents share custody, and sole custody means one parent has custody. These types of custody can be mixed and matched, such as having joint physical and sole legal custody, or having joint legal and sole physical custody, or both physical and legal custody being joint or sole.
Per Tenn. Code Ann. § 36-6-101, Tennessee courts presume that joint custody is in a minor child’s best interest. This means that the courts tend to award joint custody, and clear and convincing evidence must be given that joint custody is not in the best interest of the child to give one parent sole custody.
Tennessee Child Custody Court Decisions After Divorce
Tenn. Code Ann. § 36-6-409 provides for mediation to help parents determine child custody. Under this statute, the court may refer the parents to mediation if the parents disagree on custody. Mediation is confidential, meaning anything said cannot be shared with the court. However, if the parents find a mediation agreement, the agreement will be written down, signed, and submitted to the court for approval. Mediation can be waived for good cause, such as if one or both of the parents cannot afford the fee or allegations of abuse to the child or between the parents.
If the parents cannot reach a mediation agreement, the case returns to court and the judge makes a decision based on the best interests of the children. Many factors are considered in determining the best interests of the children. Depending on the circumstances of the case, expert witnesses such as child psychologists, forensic psychologists, child custody evaluators, social workers, or co-parenting experts may be brought in by the court or by either of the parents to offer opinions and recommendations that can assist the court in their decision.
Factors Considered When Determining the Best Interests of the Children
Tennessee uses the term “best interest of the child” as the standard for deciding child custody after divorce. While many parents believe they know what is best for their child, a parent’s factors in understanding what is best for the child may not be the same factors used to legally decide what is in the child’s best interest. Every state uses its own factors to decide the best interest of the child, and if parents disagree about custody, understanding those factors can be essential to convincing a court to grant custody to one parent over the other or to grant a particular type of custody, such as sole instead of joint. A family law attorney with King Law Offices may be able to advise parents regarding which factors would be most relevant in their case.
Tenn. Code Ann. § 36-6-106 lists several factors that the courts must consider in determining the best interest of the child. Those factors include:
- Nature, strength, and stability of the child’s relationship with each parent
- Each parent’s past performance and potential future performance of parenting duties
- Disposition of each parent to understand and meet the child’s needs regarding food, clothing, education, medical care, and other necessary care
- Reasonable preferences of children aged 12 or older
- Character and behavior of others who reside in or frequently visit the parents’ homes, and how those individuals interact with the child
- Stability of existing and proposed residences
- Whether a parent has failed to pay child support ordered by the court for a minimum of three years
The law also states that the court may consider any other necessary factors. The law does not dictate whether any factors should be prioritized over others, so it is up to the judge to decide what factors may be more important to their decision.
How a Family Law Attorney May Help With Child Custody
Deciding how to split major holidays, changing family traditions to fit your new dynamic, and adjusting to only seeing your child according to a court-approved schedule can be difficult. When you and your spouse cannot agree regarding child custody after divorce, the court may make the decision for you. Whether you are relying on the court to make that decision or you will be able to arrange an agreement with your spouse, a family law attorney at King Law Offices may be able to assist you. Our Tennessee family law attorneys may offer advice regarding which custody arrangements may be more easily approved by the court, which factors used in determining the best interest of the child will be most relevant in your case, or refer you to a trusted mediation partner to help you and your spouse work on a custody agreement. Call (888) 748-5464 today to schedule a consultation.
