A trial court's decision in determining the custody of a child is one of the most important decisions a trial court is confronted with in a divorce case. There are no hard and fast rules for determining which custody and visitation arrangement will best serve a child's needs. When the court makes a custody award, the needs of the child are most important and the desires of the parents are secondary.
A custody determination is factually driven and requires the courts to carefully weigh numerous considerations – but the overriding consideration is what is in the best interest of the child. In choosing which parent to designate as the primary residential parent for the child, the court must conduct a "comparative fitness" analysis, requiring the court to determine which of the available parents would be more fit than the other.
In engaging in this analysis, the court must consider the factors set out in Tennessee Code Annotated § 36-6-106(a).
Statutory Factors the Court Considers when Awarding Custody based on the Comparative Fitness or Best Interest analysis:
1. Love, affection and emotional ties between the parents or caregivers and the child.
2. The disposition of the parent to provide the child with necessities such as food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver.
- The court gives consideration to which parent has been the child’s primary caregiver. Which parent gets the child up, cooks breakfast, takes the child to school, takes the child to the doctor, takes care of the sick child, helps the child with homework, etc.?
- If the primary caregiver is doing a great job, the court is not likely to take the child away.
3. Continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment.
- For example, the parties are separated and the child has been living with one parent the majority of time. If this is a stable environment for the child, this will weigh heavily on the court’s decision.
4. Stability within the family unit.
- Family members, such as grandparents, aunts and uncles, who are willing to help care for the child.
5. Mental and physical health of the parents.
- Are the parents physically and/or mentally capable of taking care of the child?
- A paraplegic probably will not be awarded custody of a seven year-old because the parent is physically incapable of taking care of the child.
6. Home, school and community record of the child.
- Grades and report cards are very important. Grades are an indicator of how well adjusted a child is.
- Additionally, the court will take into account the extracurricular activities the child is involved in, such as football, Girl Scouts, choir, etc., and how the child is performing in these activities.
7. Child’s preference.
- The court must take into account a child’s preference if he/she is 12 years of age. But the child’s preference is not binding. Additionally, the court will consider the reasons for the child’s preference. Is the basis of the preference due to incentives from a parent?
8. Evidence of physical or emotional abuse to the child, to the other parent or to any other person.
- Reasonable corporal punishment (i.e. spanking) is not abuse. However, bruises are serious.
- Inappropriate comments to the child are considered abuse.
- Domestic violence between parents is a factor. When one party physically abused the other party, it can be inferred that the party will abuse the child as well.
- Assault is also taken into consideration.
9. The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person's interactions with the child.
- The court considers the character of third parties who are involved the child’s life, such as a grandmother, cousin, aunt, boyfriend/girlfriend or step-parent.
- If a parent’s new spouse or live-in boyfriend/girlfriend exhibits unsavory behavior, such as excessive drinking and partying, the court will take this behavior into account when awarding custody.
10. Parent’s past performance and the potential for the future performance of their parenting responsibilities, which includes the willingness and ability of each parent to facilitate a good relationship between the child and the other parent.
- This is a HUGE factor.
- Parents should encourage the child to have a good relationship with the other parent. A parent who speaks poorly of the other parent in front of the child probably will not be awarded custody.
TCA § 36-6-106(a)
Other Child Custody Considerations:
- Parents may agree on custody, but their agreement is not binding on the court
- Parental Rights Doctrine: When there is a dispute between parents or parents and a third party, the parent’s rights prevail unless the other party can show a substantial threat of harm to the safety of the child.
- Separating Children: Courts strive to keep children together. However, the court will divide children if the circumstances and facts warrant it. There must be a logical reason to separate the children.
- Parent’s Morals:
- A mother has custody of the child and has a boyfriend who lives with her. The child is exposed to the boyfriend on a daily basis. Is this detrimental to the child, especially in the court’s purview? No, unless there is some harm caused to the child.
- A parent has an extramarital affair during marriage. Is this detrimental to that parent getting custody? No. So long as the sexual misconduct does not affect the child, the court does not have a reason to deny custody.
- If a parent’s adulterous conduct did adversely affect the child, then the court has a reason to not award custody. This includes having sex, kissing, or holding hands in front of the child or while the child is in the house.
- Does dating during a separation pose a threat to the child’s development? Most likely no. If you are separated and only go on dates when the child is not at home, the court will not consider this in the custody award unless it negatively impacts the children.