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How to Win a Custody Battle

Posted by Melanie Stepp Lane | Nov 01, 2020 | 0 Comments

The law in Tennessee requires judges to focus on the best interest of children in custody disputes. Therefore, the best thing a parent can do to gain an advantage is to act in his/her child's best interest. 

Tennessee law sets out 15 factors that a judge must consider in analyzing the child's best interest. If you face a custody hearing, you should be prepared to present proof related to these factors. They are listed below, along with examples and suggestions of how to use them to your benefit.

  1. The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
    • A parent should be able to demonstrate that he/she has a close relationship with the child. One way to do this is to be able to describe the child's likes and dislikes, academic progress, extracurricular activities, and future ambitions. For younger children, knowing the child's favorite foods, favorite toy, favorite television shows, and how high he/she can count demonstrates a relationship. Proof that the parent regularly spends time with the child is also helpful.
    • Simply saying “She's a real daddy's girl,” or “My children are my world,” is not enough.
  2. Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
    • Do everything you can to help your child have a good relationship with the other parent. This means never saying anything negative about the other parent in the child's presence. It also means encouraging the child to visit with the other parent, respect the other parent, obey the other parent's rules.
  3. Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
    • It is best to attend the parent education class as soon as possible after you file for divorce, or file for custody. The law requires that both parents attend this seminar. Some courts strictly enforce this, while others are more lenient.  
  4. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
    • Make sure that you do not oppose the other parent taking the child to the doctor – even if you think the illness/injury is minor and could be addressed with over-the-counter medicine or simple first-aid. Also, remember that, when the child is in your care, you are responsible to provide clothes, school lunches, and any money the child needs for school. This is true even if you are paying child support.
  5. 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;
    • Be able to tell the court all the things you have done to care for the child. This includes, bathing, feeding and changing diapers. It includes helping school-age children with homework, taking them to ball practice and dance lessons. It also includes cooking meals, doing laundry, repairing toy, and taking the child to the dentist.
  6. The love, affection, and emotional ties existing between each parent and the child;
    • Most parents have affection for their children, but being able to demonstrate it in court can be difficult. Witnesses, preferably people not related to you, who have witnessed the child express his feelings about you are helpful in proving the emotional ties that exist between you and your child.
  7. The emotional needs and developmental level of the child;
    • Children's needs change as they grow up, and some parents struggle with dealing with this change.  This is particularly true with teen-agers. A judge will want to feel comfortable with your ability to deal with your child's emotional needs as they stand at the time of the custody hearing. You should be able to describe those needs and explain your plan as to how to deal with them.
  8. The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
    • You should disclose to your attorney any kind of mental health problem, or any emotional struggles that affect your ability to parent. Your lawyer can direct you to sources that will help you address these problems, and develop a strategy for dealing with this issue in court.
  9. The child's interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;
    • The court will want to know how the child gets along with other people in your household. Be able to describe the child's relationship with step-brothers/sister and step-parents.  
  10. The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
    • Children generally do not like change, and courts do not like to destabilize children's lives. If the child has lived with you for a period of time, and has done well in your home, you have a big advantage.
  11. Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
    • You have a duty to report any abuse you believe your child is experiencing. But please be careful. Too often, parents involved in custody disputes, exaggerate and even fabricate abuse allegations. This can really hurt you in court. If you have any concerns of possible abuse, immediately discuss them with your attorney.
    • Obviously, no court will want to place a child in a dangerous environment.
  12. 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;
    • Carefully think about the people you allow your child to interact with. No one is perfect, but there are some character traits that children should never be exposed to. Examples include individuals who have been convicted of violent crimes, sex offenses and drug possession. Also, if your mother or boyfriend is constantly badmouthing the other parent in the child's presence, this could be a problem for you.
  13. 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;
    • This does not mean that a child over the age of twelve gets to choose the parent he/she wants to live with. It means that a judge must consider the child's opinion, provided that opinion is reasonable. For example, a twelve-year-old who says “I want to live with my mom because my dad never takes me to band practice and won't help with my homework,” is expressing a reasonable  preference. A sixteen-year-old who says, “I want to live with my mom because she lets me smoke and stay out as late as I want, but my dad has a curfew,” is not expressing a reasonable preference.
    • Do not pressure your child into testifying, and certainly do not encourage him/her to express a desire to live with you. This will likely backfire.
  14. Each parent's employment schedule, and the court may make accommodations consistent with those schedules; 
    • Adjust your work schedule, if you can, so that you can be home when your children are home. Ensure that you have a plan for childcare for the times when you cannot be home, and be able to describe that plan to the judge. 
  15. Any other factors deemed relevant by the court.

One of the very best things you can do to help your custody case is to cooperate with the other parent. Do everything you can do to work with him/her. Never refuse a reasonable request to adjust the visitation schedule. Always consult him/her about decisions related to the child. Give the other parent as much advance notice as possible of any events or activities the child will participate in.

Remember, this is about your children, not about you.

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