Parenting (formerly custody)

We no longer have custody and visitation. We have parenting time. The mother generally has an edge in parenting litigation. The law goes back and forth. 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. Parenting 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 parenting fight. Custody cases are expensive in both emotional cost and in legal cost. The damage caused by winning a parenting case is great; the damage caused by losing is terrifying.

Joint parenting will usually be approved by the court if the parties do so by agreement. The primary physical custodian is the one the child primarily lives with and has final decisions on issues such as school, medical care, and other issues. One parent can be responsible for some areas and the other parent can be responsible for other areas

The legal standard in deciding who will get what parenting 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 be the primary parent. Some judges are more moderate, but the father is usually at a disadvantage. If the court takes parenting away from the mother, it usually has a good reason.

If there is parenting 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. It is good 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 criteria for parenting are set out in a statute, Tennessee Code Annotated 36-6-404(b), a copy of which is in the Parenting Plan Statute Appendix. They include the following:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society which the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) 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 interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(11) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;

(14) 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 preference of older children should normally be given greater weight than those of younger children;

(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

If you have been the primary caretaker of the children, take the children with you if you move out. Continuity of placement is a factor for the court. If the other parent does not object and the children do well in your parenting, it works to your favor. Stay close to your children. Make sure you use your parentin time with them for their enjoyment and development. Take them to interesting places like museums, parades, church, and appropriate movies. Have someone (not a boyfriend or girlfriend) take pictures to show the court. Be involved in their school. Get and send me copies of report cards, tests, and anything else you get from the school. Keep a calendar or journal of significant events. You will forget details over time if you do not have a record. Be careful what you write. Often these documents turn up in court and the other side will cast the worse possible light on anything you write. This is not where you vent your anger at your spouse. Do not resort to drugs, alcohol, or violence. There are specific statutes that say the judge must count this against you. Your soon to be ex-spouse will reveal any alcohol or drug incidents to the court. It is also bad for you and your children.

The Parenting Program was adopted in Tennessee. See Parenting Plan Statute Appendix for a copy of the parenting plan statute. It require that the parties file a “Temporary Parenting Plan” which sets forth various issues from parenting to parenting time, to child support, to vacations. See Parenting Plan Form Appendix for a copy of a Parenting Plan. You will need to fill out a temporary parenting plan that deals with parenting issues that will arise between now and the final divorce. The parties can agree to this plan. If it is not a “joint plan” then the court will send you to alternative dispute resolution methods such as mediation. See the section on mediation and other alternatives to trial. If an agreement is not possible after mediation then you must file a verified temporary plan with a statement of income and the judge must hear proof and set the plan as the judge sees fit.

In the parenting plan you will deal with many issues including:

Parenting–Who gets which child? Should any aspects of parenting be shared? The noncustodial parent may be the one who is a doctor and may be the one who should make medical decisions.

Child support–How much? Who carries health or life insurance on the children? Who gets to claim the children as income tax deductions? Who pays for private school or college tuition?

In evaluating competing parenting plans, the judge will use the criteria above and the parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service and to compete successfully in the society which the child faces as an adult and each parent’s employment schedule.

There is a provision in the law for restricted visitation and exemption from mediation in cases of spousal or child abuse.

Behaviors that can trigger restrictions include:

• willful abandonment, or substantial refusal to perform parenting responsibilities;

• sexual abuse;

• pattern of emotional abuse of the parent, child, or of another person living with that child;

• emotional or physical impairment;

• drug or alcohol abuse;

• substantial impairment of emotional ties with child;

• abusive use of conflict;

• past withholding of visitation without good cause;

• criminal conviction; or

• other relevant conduct.

Both parents will be required to attend an approved parenting seminar or one like it. Failure to participate in these programs can lead to a party being found guilty of contempt of court.

If the litigation gets very bitter, the court may threaten to place the children with someone other than the parents. 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 after the best interest of the children. Appointment of a Guardian Ad Litem will add significantly to the cost of your case.

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