There are two ways to file for child custody in Tennessee: via divorce and through a petition for custody (or petition for modification of custody). There are different requirements for each method, including what you must prove to prevail. Tennessee public policy encourages a relationship between a child and both parents. Courts rarely grant sole custody to a parent without a meaningful showing as to why it is in the child's best interest.
Filing for Custody: Divorce Petition
File your divorce petition. The divorce petition is the document that lets the court know what you are seeking. It is within the divorce complaint that you will ask for either joint or sole custody.
Serve your spouse with the complaint and summons. The summons informs your spouse of the petition and time limit for filing an answer. Usually, you will pay the county sheriff a fee to deliver the summons and complaint to your spouse at the address you provide.
Take the required parenting seminar. The county clerk will have information as to the location, dates and times for available seminars.
Develop a temporary parenting plan, as encouraged by Tennessee courts. If you cannot reach an agreement, each one of you will submit a plan to the judge who will make the final determination.
Attend pretrial mediation. If you and your spouse have not come to an agreement about custody, this is your last chance to work something out. Any issue unresolved after mediation is decided by the judge at your divorce hearing.
Filing for Custody: Modification
Draft a petition to modify custody. Your county clerk will typically have blank pre-printed forms you may use. These forms often require you to fill in the details, but contain the specific language needed to meet the legal requirements for a change in custody.
Serve the papers on your former spouse. You can have the sheriff's department perform the service, or do it by certified mail (return receipt requested) or regular mail. It is advised to use a method in which you can prove the other parent received notice of your complaint and summons, such as certified mail or the sheriff's service of process. If you send the modification papers via regular mail, there is no way to prove whether or not your former spouse received it.
Attend a threshold hearing. This hearing is for the sole purpose of determining whether there has been a material change in circumstances since the existing custody order was established. For example, a parent could have become terminally ill or developed a drug addiction. Nothing will occur in the modification action until a change that affects the welfare of the child has been proven.
Attend the final hearing, if held separate from threshold hearing. During this hearing a parent seeking to modify custody must prove the modification is in the best interest of the child. The court will consider the following major factors: emotional ties of child with parent; parental ability to provide child with necessities; stability and continuity in the child's life, mental and physical health of parents; and home, school and community record of the child.
Tips & Warnings
Failure to attend the parenting seminar can negatively affect your case if the judge ultimately decides custody.
References & Resources
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