A Tennessee Divorce: Can an Abusive Husband Get Custody of the Children?

By Beverly Bird

Tennessee law favors joint custody when couples divorce, but Section 4:1.04 of the state's code instructs judges that "in domestic abuse cases, joint custody is inappropriate." If a judge follows this rule and does not order joint custody after an abusive marriage, it's unlikely that he would give sole custody to the parent who made joint custody inappropriate through his abusive behavior. This would effectively reward him for committing the abuse.

Best Interests Doctrine

When children are involved in a Tennessee divorce, a permanent parenting plan is required as part of every decree. Under the legal umbrella of joint custody, a parenting plan names one parent as the primary residential parent and the other as the alternate residential parent. The state no longer uses terms such as “visitation.” Instead, parenting plans include “residential schedules” that detail where the children will live and when. When deciding which spouse to name as the primary residential parent, Tennessee courts consider 16 factors that comprise the best interests of the children. The twelfth factor addresses issues of both physical and emotional abuse. It includes abuse of the children, the other parent or even an unrelated individual. Therefore, a husband’s acts of domestic violence would work against him if he were trying to convince the court to name him as the primary residential parent. The abuse would be a what Tennessee law calls a “limiting factor.” It would limit -- although not necessarily eliminate -- his time with the children, because time spent with their father may not be in their best interests.

Primary Caregiver

Tennessee’s child custody statutes dictate that judges can’t consider a parent’s gender when determining which to name as the primary residential parent. However, a mother is often named as the primary residential parent anyway. Courts want to maintain continuity in children’s lives and this usually involves keeping them with the parent who cared for them during the marriage. This is also one of the best interests factors. If a mother was historically the caregiver during the marriage, an abusive husband would also have to overcome this hurdle to receive designation as the primary residential parent.

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Other Statutes

Tennessee law contains other statutes regarding custody, in addition to the best interests criteria. Some of these address abuse as well. Because it is emotionally and psychologically damaging for a child to witness one parent abusing the other, Tennessee judges will usually include provisions in parenting plans to try to avoid further abuse in the future. Section 4-1.04 of the state’s code allows a judge to override the presumption that joint custody is best when abuse is involved because it means more interaction between parents and this increases the odds that abuse will occur again in the child's presence. Section 4-1.05 repeats that a judge must consider abuse when weighing the best interests factors. Added together, these statutes usually make it unlikely that a court will award an abusive parent sole custody or even the majority of parenting time. Judges are obligated to structure parenting time in such a way as to minimize contact between the parents.

Child Abuse

In situations where a husband is guilty of abusing both his spouse and his children, Tennessee law considers this a significant limiting factor to both custody and visitation. Not only would a court deny him full or joint custody, but it would probably order that his visitation time with the children be supervised by a third party as well, so the children are not endangered by spending time alone with him. This might also apply if his abusive behavior stems from a drug or alcohol addiction, such that he might blow up or lose control without warning when the children are with him.


If abuse is a factor in your divorce, consult with or retain an attorney to guide you through Tennessee’s parenting plan process. You’ll probably have to prove the abuse, especially if your spouse denies it. This might be difficult to do on your own. Try to document all abusive incidents with photos, police reports or medical records. Courts are wary of parents alleging abuse that didn’t really occur in an effort to sway a custody decision in their favor.

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