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The Reeves Law Firm has extensive experience in representing parents in child custody cases throughout Tennessee. A child custody case is often the most emotional case a client will ever have. Custody cases generally can be a part of a divorce action or even part of a post-divorce action. There can also be child custody actions resulting from a child being born out-of-wedlock. Child custody cases also broadly include dependent and neglect actions filed by DCS or other interested parties. As I have discussed in a previous post, grandparent visitation actions are a type of child custody proceedings, though typically limited to the visitation side of the equation.

In cases in which the child(ren) has been born out-of-wedlock, it is important to note that the mother of the child is the defacto custodian of the child and the father has no legal rights to the child until the child has been formally legitimated and paternity is established through the judicial process. Paternity and legitimation cases are designed to determine who the biological father of the child is. In some cases, the legitimation and paternity is done jointly by agreement of the mother and father. In other cases, paternity tests of one or more male partners will be required to determine scientifically (DNA) who the biological father is. Once paternity is established, the Court can then determine child custody, visitation and child support issues. The Court must determine a custody arrangement that is in the best interests of the minor child(ren). The Court is required to consider all relevant factors, including:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7) (A) The reasonable preference of the child, if twelve (12) years of age or older;

(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and
emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;

(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; and

(10) 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.

Once all relevant factors are considered, the Court must make a determination that is in the best interest of the minor child(ren).This will include designating a primary residential parent. A Permanent Parenting Plan (PPP) form will be used to resolve all child custody and support issues.

In divorce cases, the Court is called upon to make an initial custody decision between the parents using the same factors as cited above. Again, the Court will make its findings and develop a PPP that fits the circumstances of each case.

In post-divorce actions, the Court is being asked, by one or both parents, to modify or change the PPP. Before the Court can modify a PPP, however, it must first find that a material change of circumstance, that did not exist at the time of the last Court Order, has occurred that directly affects the best interest of the minor child(ren). There is no requirement to show a substantial risk of harm to the child. A material change of circumstance may include:

  • Significant changes in the needs of the child over time;
  • Significant changes in the parents living or working conditions;
  • Failure to adhere (follow) the PPP; and
  • Other circumstances making a change in the PPP in the best interest of the minor child(ren).

Now, tell me what all of that really means! Believe me, there are thousands of cases from the Court of Appeals and Tennessee Supreme Court levels in just the last few years trying to figure out what all of that means.

In general terms, here is what you need to know. If you want to modify a PPP and the other parent will not agree with you, then you must first attend mediation with the other parent to try to resolve the dispute without the need for Court intervention. If not, then you must petition the Court for the relief you are seeking. You must show to the Court that there has been a) some material change of circumstance, that b) did not exist at the time of the last Court Order and c) this change directly affects the best interests of the minor child(ren) to such an extent to make the modification in the child(ren)’s best interests.

For example, if at the time the divorce was granted and the last Order of the Court was entered, Mother worked the 1st shift but has since taken a job working the 2nd or 3rd shift leaving the minor child(ren) at home alone during part or all of the night, then the Court will likely make the change. Clearly this is a material change of a circumstance that did not exist at the time of the divorce that directly affects the best interest of the minor child. What if a Father had a severe back injury at the time of the last Court Order that limited him to lifting 25 lbs and now the child weights 30 lbs? In this case, it was foreseeable that the child would gain weight and eventually outweigh Father’s lifting restrictions. Therefore, this change was foreseeable and the Court cannot make a modification based on this fact alone.

Once the Court finds a material change of circumstances that directly affects the best interest of the minor child, then the Court must re-consider all of the factors listed above to determine whether and how to change the PPP.

This area of the law is too vast to cover everything and discuss each topic in a blog post. Child custody and visitation cases can be expensive and time consuming due to the intensely driven factual basis for making a determination. These cases may involve lengthy discovery periods, depositions, expert witnesses and the introduction into evidence of school, counseling, medical and other records that are pertinent to the case. Additionally, these cases are fiercely contested by both parents and their attorney’s. As a result, you need to retain an attorney that has a great deal of experience in this area and knows how to effectively represent your rights. You need The Reeves Law Firm on your side. If you have specific questions, please contact us via phone, e-mail at jason@reeveslawcenter.com or Facebook.

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