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Tennessee Court Required to Consider Teenaged Child’s Preference in Custody Dispute
Posted by Martin Heller Potempa & Sheppard, PLLC on December 6, 2017
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Some parents are unable to reach an out-of-court child custody agreement during a divorce to submit to the court. When these situations turn into prolonged courtroom litigation, a Tennessee child custody attorney can work to protect the interests of their clients in court. A November 22, 2017 post-divorce case before the Court of Appeals illustrates the complexity of child custody disputes.
The parents in the case divorced in 2007 with two children. The trial court had entered a permanent parenting plan designating the mother as the primary residential parent of the older son and the father as the primary residential parent of the younger son. In 2010, the parties sought a modification of their parenting arrangement, and the trial court allowed a divorce referee to hear the matter. In 2012, the referee filed a recommendation that the mother should be designated as the primary residential parent for both of the children, which was adopted by the trial court. The appeals court subsequently vacated and remanded the matter for the trial court to conduct the proceedings.
During those proceedings, the parties both sought to be the younger child’s primary residential parent, since the older child had reached the age of majority. At the hearing, the father repeatedly requested that the child, who was 13 at the time, be allowed to express his preference to the court regarding where he wanted to live. The trial court refused the request and ultimately designated the mother as the child’s primary residential parent. The father filed another appeal.
When a Tennessee court considers a petition to modify a residential parenting schedule, it first determines whether a material change of circumstances has occurred. If so, the trial court then considers whether the modification is in the best interest of the child, utilizing statutory factors. In the case, the parties had stipulated that a material change of circumstances existed. The issue for the court, therefore, was whether modifying the parenting plan was in the best interest of the child.
The appeals court explained that although trial courts have broad discretion in deciding child custody arrangements, Tennessee law requires courts to consider all relevant factors, including 15 that are enumerated in the statute. On appeal, the father’s primary argument was that the trial court erred in refusing to allow the 13-year-old son to testify regarding his preference for a custodial arrangement.
The appeals court noted that the statute provides that the court shall consider the reasonable preference of the child if he is twelve (12) years of age or older. Despite the trial court’s unwillingness to involve the child in the parents’ litigation, the appeals court nevertheless held that it was required to consider the son’s preferences, even though they are not binding on the court. Furthermore, given the many findings of fact that were favorable to both parents and the fact-intensive nature of the best interest analysis, the appeals court explained that this factor was necessary to determine the proper outcome. Accordingly, the decision appointing the mother as primary custodian was reversed, and the matter was remanded for a consideration of the child’s preference.
The Nashville divorce lawyers at Martin Heller Potempa & Sheppard can provide compassionate advice to people who are facing important decisions regarding their family. We represent individuals in child support and child custody matters, divorce litigation, domestic violence cases, and more. Schedule your free consultation by contacting Martin Heller Potempa & Sheppard at (615) 800-7096 or submitting our online form.
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