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. 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 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.
The criteria for custody are set out in a statute, Tennessee Code Annotated 36-6-404(b). 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. 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.
Some of the custody factors include the following:
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;
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;
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;
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;
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 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;
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;
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 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;
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;
Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and
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 custody, it works to your favor. Stay close to your children. Make sure you use your visitation time with them for their enjoyment and development. Take them to interesting places like museums, parades, churches, and appropriate movies. Have someone (not your 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 or ex-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.
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 when the child faces as an adult and each parent’s employment schedule.
Both parents will 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 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 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.
This information is intended as a summary of Tennessee law. It does not replace an individual consultation with your own attorney. If you find that you are in the midst of a custody matter, I encourage you to immediately seek the assistance of an attorney. If not me, then please consult with another attorney.
Information courtesy of Larry Rice, Attorney at Law and Author of "The Complete Guide to Divorce Practice" Memphis, Tennessee