Frequently Asked Questions: Tennessee Divorce Custody

by Heather Frances J.D. Google

When Tennessee couples divorce, the court issues a divorce decree that may include terms regarding property division, alimony and child custody. To make custody determinations, Tennessee courts follow Tennessee’s statutes and presumptions regarding custody in divorce situations. Divorce cases are often different when children are involved because parents may fight harder over custody than other issues.

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What Procedures Are Different With Children Involved?

The basic procedures for a Tennessee divorce are the same whether or not the divorcing couple has children. However, there are a few additional steps to the process, such as a mandatory parenting class that divorcing parents must attend. Parents must also submit a proposed parenting plan to the court and may be required to attend mediation before the court will make a custody decision.

How Is Custody Determined?

If parents agree on custody, they can submit a joint parenting plan to the court which, if approved, is incorporated into the divorce decree. If they don’t agree, they can each submit their own proposed parenting plan and the court will decide how to award custody. Tennessee courts will award joint legal custody, which gives both parents the ability to make important decisions for the child, if it is in the best interests of the child. Tennessee courts also make decisions about the physical custody of a child, such as which parent will be the child’s primary residential parent, based on what would be in the best interests of the child. To determine a child’s best interests, courts consider a variety of factors, including the child's emotional needs and relationship with each parent and siblings. Typically, the primary residential parent has the child far more than half the time.

Does a Wife Have More Rights Than a Husband?

Tennessee law treats mothers and fathers the same, and courts are not permitted to exhibit gender bias when making custody decisions. However, factors evaluated by the court may indirectly lead to a court giving greater custody rights to a mother in certain cases, particularly those involving young children. Additionally, if one parent is proven to be unfit, the court will give the other parent greater preference; however, a court doesn’t have to find the mother unfit in order to award custody to the father.

Can a Child Pick His Custodian?

Tennessee does not allow a child to pick which parent will have custody of him, but does allow the child to express his preference. If the child is over 12 years old, the court considers his wishes as required by state law. The court may consider a younger child’s wishes, although it is not required to do so. Tennessee courts tend to consider an older child’s wishes more than those of a younger child.