How child custody works in Tennessee

Overview

Child custody is one of the most stressful parts of getting a divorce, even if both parents are cooperative and put their children’s interests ahead of their own.

Tennessee parents who understand how child custody works in their state can achieve better outcomes for their children and themselves.

In this article we cover all the details about child custody and visitation in Tennessee. Feel free to skip around to the parts that are most relevant:

What does child custody consist of in Tennessee?

Like in other states that no longer officially recognize notions of “sole” or “joint” custody, Tennessee organizes child custody into day-to-day responsibility for caring for the child and responsibility for making significant decisions in the child’s life.

Day-to-day responsibility for the child, sometimes called “physical custody”, is determined by a parenting plan that spells out who the child lives with when, also known as the residential schedule.

If only one parent has this responsibility, then usually the other parent will be allocated visitation, sometimes referred to as parenting time. In that situation, one parent has “sole custody” even though that term isn’t commonly used anymore. Instead, they’re called the “primary residential parent”. The other parent has certain rights in Tennessee, which we cover below in more detailin the FAQs.

The parent who the child lives with most of the time is referred to as the primary residential parent, and the other parent is called the alternate residential parent.

The other part of a custody order in Tennessee is the responsibility for making significant decisions in a child’s life, such as about education, health, religion, and extracurricular activities. Most of the time both parents have this responsibility, even if only one parent has physical custody.

Custody allocation between parents is described by a parenting plan, which also lays out child support obligations, how disputes between parents will be resolved, and any other details that a judge or the parents feel are important to make official as part of the custody order.

How does Tennessee make custody decisions?

Tennessee law prioritizes preserving the relationship between the child and each parent, recognizing “the fundamental importance of the parent-child relationship to the welfare of the child, and [that] the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care.” (TN §36-6-401)

No bias for or against either parent

In Tennessee, no preference is given to either parent at the beginning of the custody proceeding unless a parent has been convicted of a crime against a child (TN §36-6-101(a)(2)(A)(ii)). The law specifically notes that gender can’t be a reason to bias toward one parent or the other (TN §36-6-101(d)).

In addition, the law bars courts from presuming “for or against joint legal custody, joint physical custody or sole custody” (TN §36-6-101(a)(2)(A)(i)).

The custody process

The custody process begins when one parent petitions the court to grant custody and submits a proposed parenting plan. Usually this happens in the context of divorce, in which case the custody proceedings will be handled as part of the overall divorce case.

Divorce and child custody cases – as well as other family matters – are heard in Tennessee’s Juvenile and Family Court. Family courts are organized and run to provide better legal services to families, and often to help protect the privacy of families, abused spouses, and children whose parents are getting divorced or subject to other legal action.

After filing a petition with the court, the parent needs to serve the other parent. Parents can have the local sheriff serve the other parent, or they can use a private service to do it.

Parents who agree about how custody should be handled will jointly file a proposed parenting plan for the court to approve.

If parents do not agree on the parenting plan, then the judge will very likely order them to try mediation or some other “alternative dispute resolution” process (TN §36-6-404(c)(2)). This won’t be required if one parent was abusing the other parent or their child or if the parents can’t afford the fees of mediation and the court won’t cover the cost (TN §36-6-409(4)). In Tennessee, the court is allowed to pay for mediation sessions when parents don’t have the money to do so (TN §36-6-413(b)(1)).

The Tennessee court website has a brief, but helpful, guide to what to expect in mediation.

For more details, read our in-depth guide to creating a parenting plan through mediation.

If parents are still unable to agree on a parenting plan even after mediation, then the judge will have to decide on one based on what’s in the child’s best interests (TN §36-6-106(a)).

When it comes to allocating decision-making responsibilities, the court will consider the following (TN §36-6-407(c)):

  • The history of each parent participating in making decisions about their child’s healthcare, emotional stability, intellectual and moral development, education, extracurricular activities, religion, etc.
  • Whether parents have demonstrated a willingness to cooperate in making decisions for their child
  • Proximity to the child, to the extent that it affects decision-making

What does “best interest of the child” mean?

The “best interest of the child” is the basis for all custody decisions. It prioritizes the child’s interests over those of the parents, including any notion of fairness. And it gives the courts flexibility in deciding how to allocate custody in order to best serve the child.

Nonetheless, “the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the…location of the residences of the parents, the child’s need for stability and all other relevant factors” (TN §36-6-106(a)).

Relevant factors when considering a child’s best interest include the following (TN §36-6-106(a)(1-15)):

  • The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
  • Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  • Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
  • The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  • The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
  • The love, affection, and emotional ties existing between each parent and the child;
  • The emotional needs and developmental level of the child;
  • The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
  • The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  • Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
  • The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
  • The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
  • Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  • Any other factors deemed relevant by the court.

When proposing a parenting plan, parents should address each one of these factors, but also feel free to bring in any other information that will help the court what’s in the child’s best interest.

Do children get a say in what’s in their best interests?

It depends. A general rule of thumb is that courts will pay attention to clear preferences from children who are 14 or older and demonstrate adequate maturity. Older children, such as those 16 or older, will usually be able to have a greater say.

What goes into a parenting plan?

The main contents of a parenting plan in Tennessee are the legal and physical custody orders, including a residential schedule and/or visitation orders, child support obligations, and provisions for how disputes between parents will be resolved (TN §36-6-404).

Additionally, parents may include other provisions in the parenting plan, such as what happens if one parent moves or if one parent is in the military and gets deployed.

The law requires that a parenting plan must (TN §36-6-404):

  • Provide for the child’s changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the permanent parenting plan;
  • Establish the authority and responsibilities of each parent with respect to the child, consistent with the criteria in this part;
  • Minimize the child’s exposure to harmful parental conflict;
  • Provide for a process for dispute resolution, before court action, unless precluded or limited by § 36-6-406; provided, that state agency cases are excluded from the requirement of dispute resolution as to any child support issue involved. In the process for dispute resolution:
  • Allocate decision-making authority to one (1) or both parties regarding the child’s education, health care, extracurricular activities, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in this part. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child;
  • Provide that each parent may make the day-to-day decisions regarding the care of the child while the child is residing with that parent;
  • Provide that when mutual decision making is designated but cannot be achieved, the parties shall make a good-faith effort to resolve the issue through the appropriate dispute resolution process, subject to the exception set forth in subdivision (a)(4)(F);
  • Require the obligor to report annually on a date certain to the obligee, and the department of human services or its contractor in Title IV-D cases, on a form provided by the court, the obligor’s income as defined by the child support guidelines and related provisions contained in chapter 5 of this title; and
  • Specify that if the driver license of a parent is currently expired, canceled, suspended or revoked or if the parent does not possess a valid driver license for any other reason, the parent shall make acceptable transportation arrangements as may be necessary to protect and ensure the health, safety and welfare of the child when such child is in the custody of such parent.

Tennessee courts have published a parenting plan form that all state courts accept, and that parents can use to draft their proposed plan.

What are the possible outcomes of a custody decision?

Though the terms sole and joint custody are used less and less today, they’re still useful for describing common custody outcomes.

One parent might have physical custody of the child, with the other parent having visitation according to the parenting plan. For example, a traditional visitation schedule would be every other weekend, one evening each week, specific holidays and vacation time. Both parents might share legal custody. This situation is what many would call sole custody.

Or, parents might have joint custody of the child even if the residential schedule doesn’t have an even 50/50 split. The child might live with one parent four days a week (primary residential parent) and spend the rest of the week with the other parent (alternate residential parent). Both parents would share legal custody.

According to the superb blog of Miles Mason Family Law Group, “In most cases, it is the caregiving role performed prior to or during the divorce, not the parent’s sex, that has the greatest impact on who will be the primary residential parent in a contested child custody case.”

In rare cases, the court might order that one parent is allocated physical and legal custody. The other parent would have to have demonstrated they can’t be trusted to make decisions for the child. Parents who have been convicted of child abuse or domestic violence likely fall into this group. Or, both parents would have to have demonstrated that they truly can’t communicate at all, even about basic aspect of child-rearing.

Can a parenting plan be modified?

Parenting plans can be modified when there’s a good reason to. In Tennessee, that requires a “material change in circumstance” (TN §36-6-101(a)(2)(B)(i)). This includes, but isn’t limited to:

  • Significant changes in the child’s needs, such as due to growing up
  • Significant changes to a parent’s living or working condition that affect parenting
  • Failure or a parent to adhere to the parenting plan

What if both parents agree to change the plan?

Even if there haven’t been material changes to circumstances, as long as both parents agree on a change to the parenting plan they can submit it to the court.

The court has the option of approving this change without looking into it further (TN §36-6-101(a)(5)). In other words, if both parents agree then changes to parenting plans can happen fairly quickly.

What if one parent wants to move?

Moving out of state or further than 50 miles away is presumed to be a material change in circumstance (TN §36-6-108).

Parents who want to move need to give at least 60 days’ notice to the other parent, including where they’re moving, why, and a statement asserting that unless the other parent voices an objection within 30 days the parent will be allowed to move.

If there’s an objection, the parent who wants to move must file a petition with the court seeking approval. The parent who isn’t moving has 30 days to file a response.

If the parents are able to come to an agreement on how to modify the parenting plan, they can ask the court to approve that change.

In cases where parents don’t agree on how to change the parenting plan, the court will consider what the best interests of the child are. When it comes to a potential move, the law calls out these factors as mattering (TN §36-6-108(c)(2)):

  • The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life;
  • The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
  • The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
  • The child’s preference, if the child is twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
  • Whether there is an established pattern of conduct of the relocating parent, either to promote or thwart the relationship of the child and the nonrelocating parent;
  • Whether the relocation of the child will enhance the general quality of life for both the relocating parent and the child, including, but not limited to, financial or emotional benefit or educational opportunity;
  • The reasons of each parent for seeking or opposing the relocation; and
  • Any other factor affecting the best interest of the child.

The court will modify the parenting plan to account for the increased distance between parents if it finds that moving is in the child’s best interest.

Otherwise, it will not modify the plan. The court will create a different modified parenting plan as a sort of backup, which will go into effect only if the parent moves anyway (TN §36-6-108(c)(4)). For example, if the move is not in the child’s best interest, then the backup plan might allocate physical custody to the parent who is staying put.

The court will consider adjusting child support to take into account travel costs, if needed (TN §36-6-108(d)).

What rights do parents have to school and medical records?

Unless otherwise prohibited by court order, both parents have the right to access school and medical records for their children, including if the children are homeschooled (TN §36-6-103 and 104).

FAQs

What visitation rights do I have as a non-custodial parent?

Visitation rights are described in the court-ordered parenting plan. In general, the court “shall grant visitation to maintain the parent-child relationship” unless doing so would endanger the child (TN §36-6-301). See the question below for more details.

What rights do I have when my child is not in my custody?

For parents who do not have or who share physical custody, there will be a fair amount of time when their child is not with one parent or the other. What rights do they have then?

Tennessee law is very clear. They have the right to (TN §36-6-101(a)(3)(A)):

  • “Unimpeded” phone calls twice a week with the child for reasonable durations at reasonable times
  • Send mail to their child, which is not intercepted by the other parent
  • Receive information about major medical issues “promptly” (i.e. as soon as possible, but definitely within 24 hours)
  • Access school and medical records
  • Freedom from the other parent making “unwarranted derogatory remarks” about them in front of their child
  • Notice 48 hours ahead of time, when possible, of school activities, sports, extracurricular activities, etc. where they would be able to watch their child or participate (e.g. a school play or a baseball game)
  • Know the itinerary of out-of-state trips 48 hours in advance
  • Participate in the child’s education on the same basis as the other parent (e.g. parent-teacher conferences)

Can the court limit one parent’s access to the child?

  • Yes. The law gives the court a lot of leeway when deciding what’s in a child’s best interest. If preventing a parent from seeing a child is in that child’s best interest, then the court may order it.
  • Common examples of why a court would limit a parent’s access to a child include if that parent is a sex offender, if they’ve been abusive in the past, or if they’ve withheld the child from the other parent for a “protracted period without good cause” (TN §36-6-406).

What if one parent is in the military?

Tennessee has adopted the Uniform Deployed Parents Custody and Visitation Act. Parents in the military should ask for help in understanding this law from their base legal office.

The purpose of the law is to protect children whose parents are deployed from having that parent’s custody permanently transferred to the other parent due to deployment obligations.

The key elements of the law are:

  • It allows designated non-parents to care for the child while a parent is deployed (TN §36-7-306)
  • It requires incorporating a deployment plan into the parenting plan
  • It allows for temporary changes to custody orders while one parent is deployed, and ensures “liberal communication” between that parent and the child (TN §36-7-308)
  • Temporary orders revert back once the parent returns from deployment (TN §36-7-401)
  • Judges can’t consider past or future deployments when allocating custody responsibilities – just the impact of those deployments on the child

What is one parent is in jail or prison?

Tennessee law does not specifically address what happens if one parent is in incarcerated. However, in general a parent’s conviction and incarceration would be a “material change in circumstances” and the other parent would have good reason to move for the court to change the parenting plan. A parent in jail may be appointed a guardian ad litem to advocate for them.

What if one parent is recovering from substance abuse?

It’s possible for a parent who is recovering from substance abuse to regain custody of their child, but it won’t be an easy road.

Tennessee law describes the bare-minimum criteria a parent needs to meet for a court to be allowed to grant custody to them (TN §36-6-115):

  • They can’t be the subject of criminal charges or investigation for at least 90 days
  • They must have resolved any former or pending investigations by child protective services to the court’s satisfaction
  • The must pass two consecutive monthly drug screens

On top of this, like with any change to a parenting plan the court will evaluate whether the change is in the child’s best interest. Read about modifying parenting plans for more details.

Do grandparents have visitation rights?

It depends. If the grandparents’ child has sole or joint physical custody and refuses to allow the grandparents to see the child, there’s not much the grandparents can do.

The exception is if the child lived with the grandparents for a year or longer or a grandparent was the child’s full-time caretaker for at least half a year (TN §36-6-306(a)(1-6)). Then the grandparents can petition for visitation time.

If the grandparents’ child is divorced or deceased, they may also petition for visitation time (TN §36-6-306(a)(1-6)).

Tennessee law is somewhat in favor of grandparents seeking visitation. For example, when presenting evidence that visitation would be in the child’s best interests, grandparents are “not required to present the testimony or affidavit of an expert witness in order to establish a significant existing relationship with a grandchild or that the loss or severe reduction of the relationship is likely to occasion severe emotional harm to the child” (TN §36-6-306(b)(3)). Instead, the courts simply look at the facts of situation as a reasonable person would and judge if it makes sense for the child to be able to spend time with his or her grandparents.

If a grandparent is going to petition the court for visitation, then they should address as many of the “best interest criteria” as possible included in Tennessee law (TN §36-6-307):

  • The length and quality of the prior relationship between the child and the grandparent and the role performed by the grandparent;
  • The existing emotional ties of the child to the grandparent;
  • The preference of the child if the child is determined to be of sufficient maturity to express a preference;
  • The effect of hostility between the grandparent and the parent of the child manifested before the child, and the willingness of the grandparent, except in case of abuse, to encourage a close relationship between the child and the parent or parents, or guardian or guardians of the child;
  • The good faith of the grandparent in filing the petition;
  • If the parents are divorced or separated, the time-sharing arrangement that exists between the parents with respect to the child;
  • If one (1) parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person;
  • Any unreasonable deprivation of the grandparent’s opportunity to visit with the child by the child’s parents or guardian, including denying visitation of the minor child to the grandparent for a period exceeding ninety (90) days;
  • Whether the grandparent is seeking to maintain a significant existing relationship with the child;
  •  Whether awarding grandparent visitation would interfere with the parent-child relationship; and
  • Any court finding that the child’s parent or guardian is unfit.

What if a parent violates the parenting plan?

If a parent violates the parenting plan, then the other parent can bring a complaint to any court in the state that can handle divorces (TN §36-6-101(b)).

Courts can suspend the driver’s or professional licenses of parents found to be violating visitation orders for as long as the violation keeps happening (TN §36-6-602(a)).

Tennessee law is specific about the circumstances under which a parent can petition the court to find the other parent in violation of the parenting plan (if a parent is worried their child is in danger, then they should file an emergency petition for a change in custody):

  • If the other parent violates the visitation orders twice in six months, then a parent may petition the court
  • Before going to the court, the parent must have given written notice to the other parent via certified mail with that “subsequent violations…shall be subject to sanctions”. The parent must also file a copy of the notice with the court (TN §36-6-503(a)).
  • Then, after a parent petitions the court they must serve the other parent and include legally-required information described here (TN §36-6-503(a)(1-4)).
  • If the other parent doesn’t request a hearing to dispute the petition, then the court can rule on the violation and order penalties without a hearing (TN §36-6-503(a)). Otherwise there will be a hearing in front of a judge.

The costs of any court or attorney fees will be paid by either the violating parent or any parent who’s found to have brought the issue to the court in bad faith (TN §36-6-504(c)).

What if one parent is disabled?

The court will have no presumption that a disabled parent should not be granted custody unless the “disability impacts the parent’s ability to meet the needs of the child” (TN §36-6-106(d)).

Which school district do the children belong to if each parent has equal parenting time?

Either school district (TN §36-6-415).

Terms to know

  • Guardian ad litem: In the context of custody cases, a guardian ad litem court-appointed lawyer whose job is to advocate for child’s interests. Guardians ad litem can also be appointed to represent the interests of anyone – not just children – who are unable to do it themselves.
  • Permanent Parenting Plan: A permanent parenting plan is what the judge will issue as part of the custody order when the case is done. It is “a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support” (TN §36-6-402(3)).
  • Temporary Parenting Plan: In contrast, a temporary parenting plan is issued before the case is resolved, for example upon request by a parent when they file for a divorce. A temporary parenting plan is “a plan for the temporary parenting and the best interests of the child, including the establishment of a temporary residential schedule, and the establishment of temporary financial support designed to maintain the financial status quo to the extent possible” (TN §36-6-402(6)).
  • Primary Residential Parent: “The parent with whom the child resides more than fifty percent (50%) of the time” (TN §36-6-402(4)).
  • Alternate Residential Parent: You may hear the other parent referred to as the “alternate residential parent”.
  • Residential Schedule: Sometimes referred to as the custodial schedule, the residential schedule is simply the guidelines for who the child lives with when. It’s “the schedule of when the child is in each parent’s physical care, and the residential schedule must designate a primary residential parent…[and] in which parent’s home each minor child shall reside on given days of the year, including provisions for holidays, birthdays of family members, vacations, and other special occasions” (TN §36-6-402(5)).

Anyone who’s going to court, whether with a lawyer or by themselves, will achieve more if they understand the language used. Check out our guide to legal jargon for anyone getting a divorce to get prepared.

Other Resources

Tennessee Courts

The Tennessee Court website has various information resources for parents, including:

Tennessee Legal Aid Societies and other non-profit organizations

Legal aid organizations help and represents low-income people in civil cases. They also publish guides that are useful for everyone going to court, including parents who are working with attorneys or want to represent themselves.

Blogs by Tennessee Attorneys

JustAnswer (chat with lawyers online)

If you have more questions, consider chatting with a lawyer. JustAnswer is an online service that lets you avoid the expense and hassle of booking time with attorneys.

Instead, you can send lawyers questions and get answers back quickly. It’s low-commitment and you’ll get access to experienced lawyers who know Family Law inside and out.

Tennessee State Law

Tennessee law governing child custody is freely available online and, for the most part, quite readable even for folks who aren’t experienced with legal documents.

OurFamilyWizard

OurFamilyWizard a super simple but very capable app that helps divorced parents work together for the good of their kids. It helps with messaging, scheduling, note-taking and record-keeping, expense tracking and more.

If parents do need to return to court, either to modify a child custody order or to resolve a dispute, the data captured in OurFamilyWizard will help resolve disagreements about who said what, who did what, etc.

Using or proposing to use the app can also demonstrate to a judge one or both parent’s desires to cooperate with the other in the name of their child’s best interest.

At less than $10 per month, it’s worth trying out.

eDivorce articles

We have even more resources Tennessee parents might find useful: