In Tennessee, it is the policy to assure that minor children have frequent and continuing contact with their parents, so long as the parents have shown the ability to act in the best interests of their children.
The State of Tennessee encourages parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage or relationship.
The question becomes, how much time should the children spend with each parent?
Despite common belief, the mother does not have superior rights to the children, nor does the father. There is no presumption in favor of either the mother or the father.
When the parents are in the middle of a divorce, it may be necessary for the judge to decide with whom the children will reside, but only if the parents cannot agree. While a divorce or child custody case is pending, neither parent can permanently leave the State of Tennessee or relocate with the children outside of the jurisdiction of the court, without the court’s approval, unless both parents agree in writing that a parent may relocate with a child and the court approves.
When parents cannot agree who will have custody of the children, the judge will have to decide. The judge may take into consideration all of the circumstances of the case, including the mental health of the parties, the stability of the parties, who has been the primary caretaker of the children prior to custody being in dispute, whether there is drug or alcohol abuse, the work schedules of the parties, the bond that the children have with each parent, the ability of the parent to facilitate a close and continuing relationship between the children and the other parent, whether the parents are attentive to the children’s needs, including medical and educational needs, among other things, the home environment of the parents, the importance of continuity in the children’s lives, and the length of time that the children have lived in a stable, satisfactory environment, and the desirability of maintaining continuity, the physical health of the parents, and whether there is any evidence of family violence or sexual, mental or physical child abuse, including the criminal history of the parents.
The Main Concern of the Judge Is the Safety and Well-Being of the Children
Once the parents either reach an agreement on custody of the children, or if the judge has to make a decision on the custody of the children, a parenting plan will be drawn up. This parenting plan provides for (1) a schedule of times that the children will be residing with each parent, including during holidays, school breaks, and, of course, day-to-day times; and (2) it will provide for tie-breaking authority for making major decisions concerning the children, including their educational, extracurricular, non-emergency medical care, and religious upbringing.
Often, the Court will default final decision-making authority to the parent with whom the children reside the majority of the time, however, the parents can negotiate with each other to allocate who will have final say on these decisions. It is not uncommon for religious upbringing to be allocated to both parents, meaning, while the children are with mother, mother may bring the children to her church, and while the children are with the father, father may bring the children to his church.
The parenting plan will also provide who will claim the children on their income tax returns. If the parties cannot agree, the Court will probably side with the IRS on this, and the IRS provides that the parent with whom the children reside greater than 50% of the year gets to claim the children. If the children reside with both parents for equal amounts of time, the parenting plan will usually provide that the parents will claim the children on their individual income tax returns by alternating years. This means that the parent who does not get to claim the children on their taxes will have to deliver an IRS Form 8332 to the other parent.
The Parenting Plan also provides for transportation arrangements, including how the child will be exchanged between the parents, the location of the exchange, and how the transportation costs will be paid.
The Parenting Plan will further provide what, if any, limitations will exist while one parent has physical custody of the children and the other parent’s right to access education, health, extracurricular activity, and religious information regarding the children.
Tennessee law also provides that once a parenting plan has been established, neither parent may relocate with the children to another state, or within fifty (50) miles from his or her current residence, without first notifying the other parent of the intended relocation by certified mail, and at least sixty (60) days prior to the relocation. Whether the other parent objects or not, a modification to the parenting plan is usually required, especially if a parent is relocating a great distance, because the current parenting plan will probably no longer be feasible.
Temporary Parenting Plans may also be created while a divorce action is pending. If the parties cannot agree on parenting time and decision-making concerning the children, each parent usually presents his or her own proposed parenting plan to the court prior to a hearing on custody of and parenting time with the children. This helps the judge to ascertain what issues need to be resolved.
Child Support is also included in the Parenting Plan. The amount of child support is established based on the incomes and/or earning capacity of the parents, whether there are extraordinary expenses that are being paid for the child, including educational, medical or extracurricular expenses, and the amount of time each parent spends with the children.
Once a Parenting Plan has been entered on a permanent basis, meaning that the divorce case is over, or in a custody modification or paternity action, once a custody order is entered, and disagreements arise concerning parenting time with the children or major decisions affecting the children, then before the parties can come to court to modify the parenting plan, the parties must attend mediation in an attempt to resolve the disagreements. If mediation is not successful, then a parent can petition the court to modify the Parenting Plan. There are narrow exceptions to the mediation requirement, however, which include whether there is an emergency situation, such as child abuse, drug abuse, criminal activity of the party, or other emergency circumstances, or if the other parent refuses to attend mediation upon the request of the other parent. Also, financial issues, custodial interference, and child support issues do not have to be mediated prior to seeking modification or enforcement of the Parenting Plan.
Once a Parenting Plan is established, it is very difficult to modify it. For this reason, it is important to have an attorney experienced in family law when you are in the throes of establishing a Parenting Plan for your children.