The mother generally has an edge in custody litigation. Although the courts are supposed to favor joint custody, each judge will have an individual preference. Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce. Custody cases are the most destructive litigation. Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight. Custody cases are expensive in both emotional cost and in legal cost. The damage caused by winning a custody case is great; the damage caused by losing is terrifying.
Joint custody will usually be approved by the court if the parties do so by agreement and there is a “primary custodian.” The primary custodian is the one the child primarily lives with and has final decisions on issues such as school, medical care, and other issues. By agreement one parent can be responsible for some areas and the other parent can be responsible for other areas. Joint custody is more rarely awarded in contested cases.
The legal standard in deciding who will get custody is what is in the best interest of the children. Every judge sees it differently. If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody. Some judges are more moderate, but there are no courts in Memphis where the father has the advantage in custody litigation. If the court takes custody away from the mother, it usually has to have a good reason to do so.
The criteria for custody are set out in a statute, TCA 36-6-106, a copy of which is in the Custody Appendix. They include the following:
- The love, affection and emotional ties existing between the parents and child;
- The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a 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, satisfactory environment;
- The stability of the family unit of the parents;
- The mental and physical health of the parents;
The home, school and community record of the child;
- The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be 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;
- The character and behavior of any other person who resides in or frequents the home of a parent and such a person’s interactions with the child; and
- Each parent’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.
If there is custody litigation, you must be able to show the judge that the child is better off with you. Photographs of you and your child having a good time doing things together is useful evidence. This is a good time to subscribe to publications such as Parents magazine. Buy some books about children, parenting, and getting children through divorce. Attend seminars and keep the brochures and literature. Do these things for your child and yourself, not just to impress the judge.
The Parenting Program was adopted as a pilot project in a few courts in Tennessee. It requires that the party starting the divorce process file a “Temporary Parenting Plan” which sets forth various issues from custody to parenting time, to child support, to vacations. This plan can be agreed to by the parties. If it is not a “joint plan,” then mediation must be scheduled in an attempt to reach an agreement. If an agreement is not possible after mediation, then the Judge must hear proof and set the plan as the Judge sees fit. There is a provision in the law for “no visitation” and exemption from mediation in cases of spousal or child abuse. Both parents can be required to attend the “Children Cope with Divorce” seminar or one like it. Failure to participate in these programs can lead to a party’s being found guilty of contempt of court.
If the litigation gets very bitter, the court may consider placing the children with someone other than the parent. However, the parents must be shown to be unfit before the children will be given to someone else.
The children may need their own lawyer. This is a Guardian Ad Litem. The Guardian Ad Litem is appointed by the court to look into the best interest of the children. This will add significantly to the cost of your case.