Child Custody Case with primary residential parent

How Does a Child’s Preference Affect a Child Custody Case?

Divorce or legal separation is a difficult time for many parents, as they will have to determine how to handle child custody. When parents are unable to decide on their own, a judge will ultimately have to make the final decision for them. In some cases, when a family is splitting up, the child will express a preference to live with one parent or the other.

In this post, we will examine how the child custody process works and what difference a child’s preference will make in determining custody.

Parenting Plans in Tennessee

In the state of Tennessee, Parenting Plans are used to outline how parents will care for their children after a divorce or legal separation. 

Parenting plans allocate parenting responsibilities and determine each parent’s right to make decisions on behalf of the child. They will also establish each parent’s visitation schedule with the child as well as the allocation of child support.

One parent will be designated as the primary residential parent, usually the parent who lives with the child.

Parenting plans can be either temporary or permanent. Temporary parenting plans are put in place while a custody case is still pending, whereas permanent plans are turned into a final court order.

Parents who are able to come to an agreement on custody can submit a joint parenting plan to the court. When parents can’t agree on parenting responsibilities, each parent will need to submit their own parenting plan to the court at least 45 days before trial.

Primary Residential Parent

Every permanent parenting plan will include a residential schedule that will define when the child is in each parent’s care including weekends and holidays.

The primary residential parent is the parent with whom the child resides more than half of the time under the residential schedule. When parents evenly split responsibilities, one parent will still be designated as the primary residential parent. This parent has the final say on decisions involving the child when the parents can’t agree.

The primary residential parent doesn’t necessarily have the right to make all parenting decisions as this will depend on how a judge has allocated decision-making responsibilities in the permanent parenting plan, but the primary residential parent will likely be more involved in day-to-day decisions regarding the child.

How Does the Court Decide Who Will Be the Primary Residential Parent?

A judge will design a residential schedule and choose a primary residential parent based on the child’s best interests.

To determine the child’s needs, a judge will consider the following factors:

  • The child’s relationship with each parent
  • Each parent’s role in performing parental caretaking obligations
  • The child’s relationship with siblings and other family members
  • The child’s adjustment to home, school, and community
  • The importance of continuity in the child’s life including the length of time the child has lived in the current environment
  • Either parent’s history of domestic violence or emotional abuse
  • Each parent’s moral, physical, mental, and emotional fitness
  • Each parent’s work schedule
  • The child’s reasonable preference if 12 years old or older
  • Any other factor the court deems relevant.

No single factor will determine how custody is awarded as a judge will weigh each of the above factors in relation to the others.

What Happens When a Child Expresses Preference?

In Tennessee, Section 13 of the General Custody Provisions includes “The reasonable preference of the child if 12 years of age or older” as an influencing factor in determining child custody.

The court may also hear the preference of a younger child upon request, but the preference of older children will normally be given greater weight than those of younger children.

Be aware that the law says that the court will hear the reasonable preferences of a child over 12, but it does not say that children can decide which parent they want to live with. If the parents are not able to decide about custody on their own, it is the judge’s responsibility to determine what is in the best interest of the child and make the final decision.

When a child expresses interest in living with one parent over the other, they will need to testify in court about why they believe living with that parent is in their best interest.

There are many divorce cases where parents attempt to use the child as a pawn to get revenge on the other parent by coaching the child and trying to manipulate them into telling a particular story.

However, such schemes rarely work, as judges are familiar with the tactics competing parents will use to try to win a child custody case and can easily tell when a child has been prompted to give certain answers. The child must be allowed to speak to their needs, opinions and concerns.

Contact Hunter Fowler for Family Law Services

Child custody is a challenging experience and can be confusing for many parents. Experienced family law attorney Hunter Fowler can help you create a parenting plan that is best for you and your children. Attorney Hunter Fowler makes the needs of your family his top priority and does the work to understand your unique situation and craft strong legal solutions.

Get in touch today and take the first step to protecting you and your child for the future to come.