Custody

Laws current as of June 21, 2024

Who can get custody?

Custody can be awarded to:

either parent alone;
both parents; or
a “suitable person” if the judge believes that this is required to serve the welfare and interest of the child.¹

¹ TN ST § 36-6-101(a)(1)

What is a parenting plan and what are "parental responsibilities"?

The judge is required to create a parenting plan in a custody case, as well as in a case for divorce, separation, annulment, or separate maintenance where there are minor children. A parenting plan must be based on the child’s best interests.¹

Usually, the judge will issue a temporary parenting plan while the court case is happening. This plan may include a temporary residential schedule and temporary financial support to keep the current situation until the judge issues a final decision.²

If you and the other parent can agree to a temporary parenting plan, the judge is not required to issue a written order.³ If you cannot agree, you could ask the judge to order dispute resolution, such as mediation. However, this cannot be ordered if the other parent has:

“willfully abandoned” the child for an extended period of time;
substantially refused to perform parenting responsibilities; or
committed physical or sexual abuse or a pattern of emotional abuse of the child, you, or another person living with the child.⁴

A permanent parenting plan is issued at the end of the court case. It will include a division of “parenting responsibilities” and an award of child support, if appropriate. The permanent parenting plan is meant to:

provide for the child’s changing needs as s/he grows and matures in a way that minimizes the need for changes to the plan in the future;
establish each parent’s responsibilities for the child;
divide decision-making power in the areas of education, health care, extracurricular activities, and religious upbringing;
confirm that each parent would make day-to-day decisions for the child when the child is living with that parent;
lessen the child’s exposure to conflict between the parents;
provide for an alternative dispute resolution process, unless the other parent is abusive or willfully abandoned the child;
require the parent paying child support to report his/her income every year;
require that any parent who does not have a valid driver’s license must make acceptable transportation arrangements to protect the child;⁵ and
create a residential schedule that makes one parent the primary residential parent and says which days of the year the child will live with each parent.⁶

“Parenting responsibilities” are the parts of a parent-child relationship where the parent makes decisions and acts in support of the care and growth of the child, including:

providing for the child’s emotional care and stability;
providing for the child’s physical care;
providing encouragement and protection of the child’s intellectual and moral development;
assisting the child in developing and maintaining appropriate interpersonal relationships;
exercising good judgment regarding the child’s welfare; and
providing financial security and support for the child.⁷

¹ TN ST § 36-6-402(5)
² TN ST § 36-6-402(6)
³ TN ST § 36-6-403(1)
⁴ TN ST §§ 36-6-403(2); 36-6-406(a)
⁵ TN ST §§ 36-6-404(a); 36-6-402(3)
⁶ TN ST §§ 36-6-404(b); 36-6-402(5)
⁷ TN ST § 36-6-402(2)

How will a judge make a decision about custody?

Custody is determined according to the best interest of the child. The judge will create a permanent parenting plan that allows both parents to have as much participation as possible in the life of the child while taking into consideration the following factors:

the location of each parent’s home;
the child’s need for stability;
love, affection, and emotional ties existing between the parents and the child;
the ability of the parents to provide the child with food, clothing, medical care, education, and other necessary care;
whether one parent has been the primary caregiver;
the importance of continuity in the child’s life and the length of time the child has lived in a stable environment; however, if you can prove to the judge that you took your child from the home because the other parent abused your child, this relocation should not harm your chances of getting custody;
the stability of the family unit of the parents;
the mental and physical health of the parents;
the home, school, and community records of the child;
any “reasonable preference” of a child who is twelve years old or older as to where they want to live; Note: The judge may hear the preference of a younger child if you request it. The preferences of older children are normally given greater weight than those of younger children;
evidence of physical or emotional abuse to the child, to the other parent, or to any other person, including the child’s siblings;
the character and behavior of any other person living in, or frequently visiting, a parent’s home and that person’s interactions with the child;
whether a parent has failed to pay court-ordered child support for a period of three years or more; and
each parent’s ability to manage parenting responsibilities, including his/her willingness and ability to encourage a close and continuing parent-child relationship between the child and other parent. In determining each party’s willingness, the judge is supposed to consider:
- the likelihood of each parent to honor and facilitate court-ordered parenting arrangements and rights; and
- any history of either parent of denying parenting time to the other parent in violation of a court order.¹

Note: The judge will not consider the 14 factors listed above when creating the residential schedule if the judge believes that the other parent “willfully abandoned” the child or committed physical abuse, sexual abuse, or a pattern of emotional abuse against you, the child, or anyone else living with the child. The reason why the judge won’t consider those factors is because the law would place limitations on other parent’s time due to the abuse or abandonment.² For more information, see Can a parent who committed violence or abandoned the child get custody or visitation?

If one parent is disabled, the disability alone cannot be considered unless the disability impacts the parent’s ability to meet the needs of the child.³

¹ TN ST § 36-6-106(a)
² TN ST § 36-6-106(g)
³ TN ST § 36-6-106(e)

What rights do I have to my child when s/he is spending time with the other parent?

As long as the judge believes that it is in the child’s best interest, a custody order can include the following “rights” that a parent must have when the child is spending time with the other parent. The custody order can include that you, and the other parent, have the right to:

not have the other parent make insulting or offensive remarks about you or your family to the child or in front of the child;
uninterrupted telephone or video conference conversations, if available, with your child:
- at least twice a week;
- at reasonable times; and
- for a reasonable length of time;
have the telephone number or video conference information, if it is available, where your child can be reached;
send mail to your child without the other parent destroying it, opening it, or censoring it, and the other parent must give the child all of your letters, packages, etc., as soon as they are received;
receive notice and relevant information within twenty-four hours or sooner, if possible, of any hospitalization, major illness or injury, or death of your child;
receive directly from your child’s school any educational records that are usually made available to parents, including report cards, attendance records, names of teachers, class schedules, and standardized test scores. Also, the parent who enrolls the child in school must provide the name, address, telephone number, and other contact information for the school to the other parent if s/he requests it;
be given at least forty-eight hours’ notice, whenever possible, of all extracurricular school, athletic, and religious activities where parental participation or observation would be appropriate. Each parent should have the opportunity to participate in the activities or observe them. Also, the parent who enrolled the child in each activity must advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent can make arrangements to participate or observe unless this would be prohibited by a court order, such as a protection order;
receive copies of your child’s medical, health, or other treatment records directly from the treating physician or healthcare provider. Also, the parent who arranges for medical treatment or health care must provide the name, address, telephone number, and other contact information for the physician or healthcare provider to the other parent if s/he requests it;
reasonable access and participation in the child’s education on the same basis that are provided to all parents, such as the right to see the child during lunch and other school activities, as long as it does not interfere with the school’s day-to-day operations or with the child’s educational schedule; and
receive from the other parent information about trips where the child is leaving the state for more than forty-eight hours, including the planned dates of departure and return, the places the child will be going, the form of travel, and a contact telephone number.¹

¹ TN ST § 36-6-101(a)(3)(A), (a)(3)(B)

When can a grandparent file a petition for visitation rights?

A grandparent can file a petition for visitation in court if:

the parent(s) or legal custodian:
- won’t allow the grandparent to have a relationship with the child; or
- severely reduced the grandparent’s relationship with the child; and
any of the following are true:
- the child’s father or mother died or has been missing for six months or more;
- the child’s father or mother are divorced, legally separated, or were never married to each other;
- the court of another state has ordered grandparent visitation;
- the child lived in the grandparent’s home for at least twelve months and was removed from that home by a parent or legal custodian; or
- the child and the grandparent had a significant relationship for at least the twelve months immediately before the parent or legal custodian stopped the relationship or severely reduced it. However, the petition cannot be based on this if the reason for stopping or limiting the relationship was abuse or danger of substantial harm to the child.¹

Note: A “grandparent” is defined under the law as:

a biological grandparent or great-grandparent;
the spouse of a biological grandparent or great-grandparent; or
a parent or grandparent of an adoptive parent.²

¹TN ST § 36-6-306(a)
²TN ST § 36-6-306(e)

When can a grandparent be granted visitation rights?

Once the visitation petition is filed, the judge would hold a hearing. In order to be granted visitation, two things must happen at the hearing:

the grandparent must prove that there would be a danger of “substantial harm” to the child if visitation were not granted; and
the judge must find that visitation would be in the best interests of the child after considering the factors explained in How will a judge make a decision about custody?¹

“Substantial harm” can come from the parent or custodian not allowing or severely limiting the grandparent-child relationship when any of the following are true:

the child had such a “significant existing relationship” with the grandparent that the loss or severe reduction of the relationship is likely to cause severe emotional harm to the child;
the child had a “significant existing relationship” with the grandparent and the loss or severe reduction of the relationship presents the danger of other direct and substantial harm to the child;
the grandparent was a primary caregiver to the child and therefore, the loss or severe reduction of the relationship could interrupt being able to provide for the daily needs of the child, causing physical or emotional harm; or
the child’s mother or father died and the grandparent seeking visitation is the parent of that deceased parent.²

A “significant existing relationship” is when:

the child lived with the grandparent for at least six months in a row;
the grandparent was a full-time caretaker of the child for at least six months in a row; or
the grandparent had frequent visitation with the child for at least one year.³

¹TN ST § 36-6-306(b)(1), (c)
²TN ST § 36-6-306(b)(1), (b)(4)
³TN ST § 36-6-306(b)(2)

Legal Information: Tennessee

Tennessee Custody