When Do Children Have a Say When It Comes to Custody?
Posted by Martin Heller Potempa & Sheppard, PLLC on June 14, 2019
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When parents decide to split up, they face many critical issues. Among them includes determining where their children will live. Meanwhile, there’s something many mothers and fathers don’t realize. Tennessee law actually assigns an age when children have a say when it comes to custody.
As you should know, Tennessee courts take child custody issues quite seriously. The family judge’s decision focuses on the best interest of the child. And, that’s not just some clever catchphrase. In fact, determining a child’s best interest requires consideration of no less than fifteen separate factors.
TN Code § 36-6-106 provides the language the Legislature adopted regarding provisions for child custody. The location of the residences of both parents proves essential in deciding how they will enjoy maximum participation in their children’s lives. The need for stability also relates to ensuring the child’s best interests are met.
Meanwhile, the statute specifically addresses when children are old enough to express a preference concerning where they want to live. If your child is over the age of twelve (12), the court will consider what it classifies a “reasonable preference.” In some cases, the judge may listen to the preferences expressed by a child younger than age twelve.
Child’s Preference: One Factor in Custody Decisions
As noted previously, the law requires judges to evaluate fifteen factors in making custody decisions. The child’s reasonable preference is just one, together with:
The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
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;
Refusal to attend a court-ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
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;
The love, affection, and emotional ties existing between each parent and the child;
The emotional needs and developmental level of the child;
The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
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;
Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
Any other factors deemed relevant by the court.
When the court interviews a child stating a reasonable preference, it becomes a matter of great importance. For one, the child’s maturity level matters. The court may also seek to determine if either of the parents engaged in manipulation to influence the testimony. Alienation of a child’s affection represents a critical issue in custody disputes.
Age and Reasonable Preference
The courts almost always give more credence to older teens than younger children. In some cases, parents may agree with their children’s preferences. Although the judge considers their opinions, the best interests of the child remain paramount.
Consider the meaning of reasonable preference. A child may choose to live with a parent to act as a caretaker. What if the mother or father is a substance abuser? Does this constitute a reasonable preference? In the child’s eyes, it might. However, it surely doesn’t suggest protecting the best interests of the child.