In the Best Interests of the Child :: Child Custody

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We're so excited to partner with Thomas, White & Gill to bring you this important information.

The most common question parents going through a divorce ask is, “What about my kids?”  This answer has changed a lot since our parents were divorcing in the 80’s and 90’s.  In the state of Tennessee, the paramount deciding factor is what the court deems to be “in the best interests of the child.”

What does the court even think that means?

If your divorce goes to trial, and it doesn’t have to, the judge will evaluate your parenting agreement on the following elements:

  • The child’s wishes/preferences provided that they are mature enough to make such claims; usually age 12 and up
  • The child’s stability regarding their current home, school, and community, and whether a change will disrupt that stability
  • The child’s ability to adjust to their school, community, and home
  • The parents’ capability to provide for the child’s needs (education, religious training, food, shelter, health care)
  • The parents’ parenting skills and willingness to encourage and foster a continuing relationship between the child and the other parent
  • Any history of domestic violence, child abuse, negligence, or substance abuse
  • The mental or physical health of the parties involved
  • The custodian’s willingness to comply with a new custody arrangement or residential schedule
  • The testimony provided by any party, or by the court itself, who can testify what’s best for the child

Now what?

If the parents can agree on how they’d like to handle parenting, the courts don’t even have to get involved. The parenting agreement can be agreed upon at any time, even before the papers are filed. Once agreed upon, the plan can be filed and become official.

A parenting plan must be completed on a particular form issued by the Supreme Court of Tennessee. Within that parenting plan, it allocates responsibilities between parents, including final decision-making authority, parenting time (also called residential time), and parent transportation. Furthermore, parenting plans establish where the children will live and allocate child support by attaching child support worksheets.

The residential schedule also details which parent’s home the child will live in on given days of the year, including holidays, birthdays, vacations, and other special occasions.

If this seems overwhelming, it’s ok, that is what Attorney Gill can help you navigate and advocate for your child’s best interests.

Divorcing Tennessee parents are required to attend a four-hour parenting class and enter a parenting plan with the court in order to qualify for a divorce.

The state of Tennessee identifies one parent as the Primary Residential Parent (PRP) with the other party the Alternative Residential Parent (ARP), even if parents elect the popular option of joint custody. This does not diminish the role of the alternate parent. Both parents will have equal final authority on day-to-day decisions of the child’s care. The courts needed to identify each to simplify referencing the parties in documentation. These two roles will be identified even in the cases of joint custody, where the child spends equal time with both parents according to a residential schedule.

Who chooses the Primary Residential Parent?

Ideally, this decision is made in the mediation of a divorce. Some divorces will go to trial and a judge will decide several components of how you both move forward. However, you can work out this portion together and avoid a judge’s involvement.

child alone with luggage

What if we can’t come to an agreement?

If at any time, the parents cannot agree, even after the divorce, they can initiate mediation to solve disagreements. If they cannot resolve the dispute in mediation, it can be raised to the court. However, be aware that a judge will not often overrule a parent when the child’s wellbeing is not in danger.

In most cases, parties can come to an agreement amicably and won’t need a judge to determine where and how their children are being raised. Having an attorney versed in both mediation and litigation is exceedingly helpful. Attorney Gill’s expertise and experience in both practices lends to expedient, and more peaceful, agreements. She protects the rights of her client according to the Tennessee or Mississippi laws.

What are our options?

The residential schedule and parenting time, formerly the custody agreement, can be agreed upon at any time during the proceedings of a divorce, even before the official filing. A court of law only becomes involved if an agreement cannot be reached between the two parents.

Depending on the location of parents after the divorce, their schedules, and their ability to care for the children adequately, a residential schedule will be mapped out to allocate parenting time. Parenting time is any time that the child is in the care of that parent.

All parties involved in this decision should be acting from the perspective of what is in the best interests of the child, including the parents, their attorneys, and the court.

Once a Parenting Time and Residential Agreement is arranged, the court and Tennessee law lay out these guidelines to encourage a relationship between the child and the parents, and expects both the PRP and ARP to uphold these guidelines while the child/children are in their care: Tennessee Code Annotated Section 36-6-101(a)(3)

This, along with many other questions, may have your head swimming and your heart racing. Make sure your children have an entire team rallying for their best interests. When you are facing the possibility of divorce, you want an experienced attorney with integrity and honesty on your side.

Lisa J. Gill is a family law attorney and is listed as a Rule 31 mediator in Germantown, TN. She is a partner at Thomas, White & Gill. In her practice, she offers consultations and legal services for parties to fully understand the divorce process and all of its components. To make an appointment with Lisa J. Gill, please call her office at (901) 537-0010.

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