One of the scariest things about divorce for parents is the issue of child custody. Both parents love their kids, so they both want to spend as much time with the children as possible. However, the court ultimately decides what is in the best interests of the child when determining child custody. We’ve assembled some of the most frequent questions parents have when faced with child custody proceedings.
1. What’s the Difference Between Legal Custody and Physical Custody?
In child custody cases, either parent or both parents can be awarded legal custody and physical custody. Legal custody involves the responsibility for making decisions on behalf of your child, such as deciding where they go to school, where they get medical care, and so on. Physical custody, on the other hand, includes where the child lives.
2. How Do Courts Determine Custody?
In Tennessee, parents must attend a four-hour parenting class, attend mediation, and attempt to negotiate a permanent parenting plan. If parents can agree on a plan, they record it in detail on a particular form required by Tennessee courts, and the form is submitted for review and approval by a judge. If parents cannot agree, a judge will decide who will serve as the primary residential parent at a trial. Forty-five days before the trial, each parent must submit a proposed permanent parenting plan. Typically, the judge will decide custody in the best interest of the child and has the authority to choose between the two plans or order a different plan.
3. What Does “Best Interests of the Child” Mean?
Each state defines its own standards for what is best for the child, but they all make decisions based on what is an ideal situation for him or her. Judges will consider a number of factors when making their decision, including the child’s relationship with each parent, each parent’s parenting responsibilities, the disposition of each parent to provide the child what he or she needs, and the fitness of each parent as it relates to their ability to parent a child.
4. Does My Child Get a Say in the Child Custody Decision?
Once a child is 12 years of age, a parent can request the court consider the child’s wishes in a contested custody case. However, the child can’t decide who to live with. The court will consider his or her preference, but if the child’s choice is not in his or her best interests, the court cannot comply. If the child is older, however, depending on his or her reasoning and maturity, the child’s wishes and arguments may be more likely to be considered.
5. Are Siblings Always Kept Together?
In Tennessee, a judge will want to keep siblings together in almost all cases. For a court to make the decision to split siblings between the parents, it must have a compelling reason to do so. Even if parents agree to split siblings, the court can reject the proposed arrangement.
6. What is a Guardian Ad Litem?
A Guardian Ad Litem (GAL) is a term for a licensed attorney appointed by the court to represent and advocate for the child or children in a contested custody proceeding. The role of a GAL may depend on the specific judge that assigns him or her and the circumstances of the case.
7. Can Temporary Custody Be Awarded?
Yes. If parents can’t agree on a parenting arrangement while the divorce is ongoing, either parent can petition the court to determine a temporary parenting plan. However, some judges may refuse such a request because hearing a contested petition for a temporary parenting plan can be just as lengthy and complicated as a custody trial.
8. Can Custody Be Changed After a Divorce?
Custody arrangements can be altered after a divorce, but there must first be a material change of circumstances which affects the child’s well-being. Tennessee law lists certain conditions that can be considered a change in circumstances, such as losing a job. If the court agrees you have experienced a significant change of circumstances, the custody change must also be in the best interest of the child before it can modify who the primary residential parent should be.
9. What Happens If I Want to Move Out of State?
Relocation cases can be incredibly complicated. The simplest cases involve a parent wishing to move with the child and the other parent agreeing to the move. However, whoever wants to move must give notice well in advance to the other parent so the other parent can file an action with the court. Sometimes parents will seek to block the move, particularly if the relocating parent has physical custody of the child. Typically, if the moving parent has about equal time with the child and complies with the Tennessee Relocation Statute, the court should permit the relocation if it is not motivated by vindictiveness and it is in the child’s best interests.
10. Can a Parent Lose Visitation If Child Support Isn’t Paid?
If a parent stops making child support payments, he or she still has the right to see their child. Whoever has physical custody of the child cannot deny visitation for non-payment of child support. Visitation, custody rights, and child support are entirely different legal issues. Failure to pay child support can result in garnished wages and other such punishments, but the custodial parent must petition the court to take action rather than taking the matter into his or her own hands. According to Tennessee law, it is in the child’s best interests to spend time with both parents. The only exception is if a parent abandons a child by never visiting and consistently failing to pay support over an extended period of time.
If you have more questions about child custody, including the role of fathers' rights and grandparents' rights in child custody, don’t hesitate to give us a call. Our Clarksville family law attorneys can offer you a client-driven approach that other larger law firms can’t match. We can offer you sound legal advice and address any questions or concerns you may have about your case. The lawyers at Patton & Pittman Attorneys have more than seventy-five years of collective legal experience to offer your case. Let us see what we can do for you.
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