The most important issue in a divorce involving minor children is where the children will live afterwards.  Generally the best way to deal with this is for both parents to put the interests of the children ahead of their own and to discuss matters rationally and fairly, without using the children as pawns to continue fighting with or trying to hurt each other, and to reach an agreement regarding custody, visitation, child support and parenting responsibilities.  If the parents agree on joint custody, the court will generally approve it.

        But the reality is that if two parents were able to do this they probably wouldn't get divorced in the first place.  So the decision gets left to the judge handling the divorce.

        When that happens the court normally awards full or primary custody to one parent and visitation to the other.  Even if the court order will be for shared parenting responsibilities, generally the child will be with one parent far more than the other.

        In making this decision, the court looks for what is in the best interest of the children.

Statutory Factors
        By statute, TCA 36-6-106, the court is to make its decisions based on the best interest of the child, and is to consider "all relevant factors including the following where applicable":

    1) The love, affection and emotional ties existing between the  parents and child;
    2) The ability to feed, clothe, and provide proper medical care, education and other necessary care, and the degree to which a parent has been the primary care giver;
    3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
    4) The stability of the family unit of the parents;
    5) The mental and physical health of the parents;
    6) The home, school, and community record of the child;
    7) If the child is twelve or older, the preference of the child, if the child wishes to express a preference (this preference is not controlling, though the older the child the greater the weight the court is to give it);
    8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;
    9) 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.

        According to the language of the statue, these are the factors the court is to consider in any child custody case, even when the dispute is between a parent and a non-parent.  (Note that this is not an exclusive list and that other factors can also be considered.)  Fortunately Tennessee's Supreme Court has rejected this approach and held that in disputes between a parent and non-parent, the parent has a constitutionally protect right to raise his or her child, and when the dispute is between a parent and a non-parent the requirement is clear and convincing proof that there is a substantial risk of substantial harm to the child in the near future if the child is left with the parent.  Click here to see What Is Needed To Remove A Child For Abuse Or Neglect, which sets out the requirements for placing a child with someone other than a parent.

        (If Tennessee courts were to in fact apply the approach the legislature set out, a pair of good, wealthy, loving parents who wanted another child could go to court at any time to ask for the custody of any child whose parents had very modest incomes and whose parenting skills were marginal, but not actually in any way harmful to the child.  The wealthy couple would get the child, because the child would be better off with them -- they are good parents who want the child and could offer the child everything, while the child's own parents are not harming the child, but are simply marginal parents.  This is not what we as a society want happening, and the Tennessee Supreme Court decisions prevent it from happening here.)

To Improve Your Chances
        There are a variety of things you can do to improve your chances of winning custody in a divorce, or in later persuading a court to change custody.  For advice on how to best position yourself to persuade a judge, click here to see Advice In Seeking Child Custody.

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