Child Custody: Mediation/Divorce Trial

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Child Custody: Mediation/Divorce Trial

 

When parties’ in a divorce action have minor children, a Permanent Parenting Plan must be created. This can be accomplished either by an agreement between the mother and father or by an order from the Judge.

Being that the parties in a divorce action must attend mediation prior to having a trial, a great majority ofcustody issues are resolved during mediation. In my opinion, this is usually the best scenario for most parties. Mediation allows the parties to have input in how their case is resolved and, more importantly, allows the parties to determine the best parenting plan for their children. One benefit of mediation is that it hopefully allows the parties to settle on a plan they can be comfortable with.

In the event that mediation is unsuccessful, the Judge presiding over the divorce trial must look to the statutes while making custody determinations. Tennessee Code Annotated § 36-6-106(a) says that:

“In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors. The court shall consider all relevant factors, including the following, where applicable:

  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;
  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;
  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;
  4. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  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;
  6. The love, affection, and emotional ties existing between each parent and the child;
  7. The emotional needs and developmental level of the child;
  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;
  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;
  10. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  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;
  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;
  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;
  14. Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  15. Any other factors deemed relevant by the court.

While Judges across the State of Tennessee follow this same statute, their application will vary from jurisdiction to jurisdiction, and will often times leave both the mother and father unhappy with the parenting plan created. This is why mediation is so important in family law cases.

If you are considering divorce, or have questions regarding child custody, and would like to schedule a free initial consultation, please call Parkerson | Santel at (615) 956-7938 and allow our Murfreesboro family law attorneys and staff to help you through this difficult time.

2018-02-14T21:54:53+00:00