Can One Parent “Win Custody” of the Children under Tennessee Law?

When many people think about the impact of divorce on their family they focus on “winning custody,” where the belief is that one parent will have most of the control and most of the parenting time, and the other parent will have only “visitation privileges.”  This is the old model and no longer applicable under Tennessee Law.

Under current Tennessee Law both parents can share time with the children equally, or one parent can have more than 50% of the time.  The parent with more than 50% is called the “Primary Residential Parent.” The other parent is called the “Alternate Residential Parent.” These designations do not apply if the parents share time equally.

Under the new law both parents’ roles are important. For instance it is common for  the Parenting Plan to provide for “joint decision making” for the major decisions affecting the children, independently of how parenting time is allocated.  And, under the law, both parents are encouraged to spend as  much time as possible with each of their children, along as it is in the best interest of the child.

This new approach eliminates what were often mis-guided and harmful fights over which parent would “get custody.”

Does Tennessee Allow 50/50 Parenting Time?

Yes.  Tennessee law permits equal (50%-50%) parenting schedules so long as this is in the children’s best interest.

It is helpful to have a general understanding of the Parenting Plan form that will be used in Tennessee divorces. Please see the Resources page of my web site.

Please note that there are areas on the form where parents can add their own provisions to cover their unique family situations.

How Much Time Should I Expect To Get With My Children?

Tennessee law seeks to maximize both parents’ residential time with their children, so long as the schedule is in the child’s best interest. Tenn. Code Ann. Section 36-6-106(a) favors a parenting schedule that gives each parent the maximum amount of time in accordance with the child’s best interests.

Ironically, parents who wage a court battle against the other parent in an effort to “win” custody may do so at their peril. The warlike approach – where one parent exaggerates the other’s lack of parenting fitness – can back-fire.  Under Tennessee law, the parent who fails to encourage and facilitate a close and continuing parent-child relationship for the other parent can be seen as causing harm to the child.

What Decisions Need To Be Made During Divorce Regarding My Children?

If you have minor children, you will need to make important decisions about their parenting.   This is done by developing a “Parenting Plan” during the divorce process.

Tennessee courts encourage parents to come to their own agreements on all aspects of the Parenting Plan, through disagreements can easily arise in many parts of it.

These plans, always required by the court, have many categories covering all aspects of parenting. For instance:

  • FALL VACATION (If applicable)
  • SPRING VACATION (If applicable)

In addition, there is a section on how ongoing “Decision Making” will be handled, covering both ordinary day-to-day decisions and major decisions, such as, medical care, emergency medical care and other emergency decisions, religious upbringing, and what extra curricular activities children participate in.  Parents are able to add other categories to the Parent Plan, depending on their families’ needs.

Other parts of the Parenting Plan cover child support payments, residential time with the children, medical and dental insurance (for the children), life insurance (on the parents) and childcare expenses.

The Parenting Plan becomes a central part of any divorce. If settled out-of-court the parents can play the determining role in all details of the Parenting Plan.   If the case goes to trial, however, then a judge, who does not know much about you and your children’s needs, will make the decisions.