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Legal Information: Tennessee

Tennessee Custody

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Basic information

Who can get custody?

Custody can be awarded to:

  • either parent alone;
  • both parents; or
  • a “suitable person” if the judge believes that this is required to serve the welfare and interest of the child.1

​1 TN ST § 36-6-101(a)(1)

How will a judge make a decision about custody?

Custody is determined according to the best interest of the child. The judge will order a custody arrangement that allows both parents to have as much participation as possible in the life of the child while taking into consideration the following factors:

  • the location of each parent’s home;
  • the child’s need for stability;
  • love, affection, and emotional ties existing between the parents and the child;
  • the ability of the parents to provide the child with food, clothing, medical care, education, and other necessary care;
  • if one parent has been the primary caregiver;
  • the importance of continuity in the child’s life and the length of time the child has lived in a stable environment; however, if you can prove to the judge that you took your child from the home because the other parent abused your child, this relocation should not harm your chances of getting custody;
  • the stability of the family unit of the parents;
  • the mental and physical health of the parents;
  • the home, school, and community records of the child;
  • any “reasonable preference” of a child who is twelve years old or older as to where they want to live; Note: The judge may hear the preference of a younger child if you request it. The preferences of older children are normally be given greater weight than those of younger children;
  • evidence of physical or emotional abuse to the child, to the other parent, or to any other person;
  • the character and behavior of any other person living in, or frequently visiting, a parent’s home and that person’s interactions with the child;
  • whether a parent has failed to pay court-ordered child support for a period of three years or more; and
  • each parent’s ability to manage parenting responsibilities, including his/her willingness and ability to encourage a close and continuing parent-child relationship between the child and other parent. In determining each party’s willingness, the judge is supposed to consider:
    • the likelihood of each parent to honor and facilitate court-ordered parenting arrangements and rights; and
    • any history of either parent of denying parenting time to the other parent in violation of a court order.1

If one parent is disabled, the disability alone cannot be considered unless the disability impacts the parent’s ability to meet the needs of the child.2

1 TN ST § 36-6-106(a)
2 TN ST § 36-6-106(e)

What rights do I have to my child when s/he is spending time with the other parent?

As long as the judge believes that it is in the child’s best interest to do so, custody orders can include the following “rights” that a parent must have when the child is spending time with the other parent. The custody order can include that you, and the other parent, have the right to:

  1. not have the other parent make insulting or offensive remarks about you or your family to the child or in front of the child;
  2. uninterrupted telephone conversations with your child:
    • at least twice a week;
    • at reasonable times; and
    • for a reasonable length of time;
  3. know a telephone number where your child can be reached;
  4. send mail to your child without the other parent destroying it, opening it, or censoring it, and the other parent must give the child all of your letters, packages, etc., as soon as they are received;
  5. receive notice and relevant information within twenty-four hours or sooner, if possible, of any hospitalization, major illness or injury, or death of your child;
  6. receive directly from your child’s school any educational records that are usually made available to parents, including report cards, attendance records, names of teachers, class schedules, and standardized test scores. Also, the parent who enrolls the child in school must provide the name, address, telephone number, and other contact information for the school to the other parent if s/he requests it;
  7. be given at least forty-eight hours’ notice, whenever possible, of all extracurricular school, athletic, and religious activities where parental participation or observation would be appropriate. Each parent should have the opportunity to participate in the activities or observe them. Also, the parent who enrolled the child in each activity must advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent can make arrangements to participate or observe unless this would be prohibited by a court order, such as a protection order;
  8. receive copies of your child’s medical, health, or other treatment records directly from the treating physician or healthcare provider. Also, the parent who arranges for medical treatment or health care must provide the name, address, telephone number, and other contact information for the physician or healthcare provider to the other parent if s/he requests it;
  9. reasonable access and participation in the child’s education on the same basis that are provided to all parents, such as the right to see the child during lunch and other school activities, as long as it does not interfere with the school’s day-to-day operations or with the child’s educational schedule; and
  10. receive from the other parent information about trips where the child is leaving the state for more than forty-eight hours, including the planned dates of their departure and return, the places they will be going, the form of travel, and a contact telephone number.1

1 TN ST § 36-6-101(a)(3)(A), (a)(3)(B)

When can a grandparent file a petition for visitation rights?

A grandparent can file a petition for visitation in court if:

  1. the parent(s) or legal custodian:
    • won’t allow the grandparent to have a relationship with the child; or
    • severely reduced the grandparent’s relationship with the child; and
  2. any of the following are true:
    • the child’s father or mother died or has been missing for six months or more;
    • the child’s father or mother are divorced, legally separated, or were never married to each other;
    • the court of another state has ordered grandparent visitation;
    • the child lived in the grandparent’s home for at least twelve months and was removed from that home by a parent or legal custodian; or
    • the child and the grandparent had a significant relationship for at least the twelve months immediately before the parent or legal custodian stopped the relationship or severely reduced it. However, the petition cannot be based on this if the reason for stopping or limiting the relationship was abuse or danger of substantial harm to the child.1

Note: A “grandparent” is defined under the law as:

  • a biological grandparent or great-grandparent;
  • the spouse of a biological grandparent or great-grandparent; or
  • a parent or grandparent of an adoptive parent.2

1 TN ST § 36-6-306(a)
2 TN ST § 36-6-306(e)

When can a grandparent be granted visitation rights?

Once the visitation petition is filed, the judge would hold a hearing. In order to be granted visitation, two things must happen at the hearing:

  1. the grandparent must prove that there would be a danger of “substantial harm” to the child if visitation were not granted; and
  2. the judge must find that visitation would be in the best interests of the child after considering the factors explained in How will a judge make a decision about custody?1

Substantial harm” can come from the parent or custodian not allowing or severely limiting the grandparent-child relationship when any of the following are true:

  • the child had such a “significant existing relationship” with the grandparent that the loss or severe reduction of the relationship is likely to cause severe emotional harm to the child;
  • the child had a “significant existing relationship” with the grandparent and the loss or severe reduction of the relationship presents the danger of other direct and substantial harm to the child;
  • the grandparent was a primary caregiver to the child and therefore, the loss or severe reduction of the relationship could interrupt being able to provide for the daily needs of the child, causing physical or emotional harm; or
  • the child’s mother or father died and the grandparent seeking visitation is the parent of that deceased parent.2

A “significant existing relationship” is when:

  • the child lived with the grandparent for at least six months in a row;
  • the grandparent was a full-time caretaker of the child for at least six months in a row; or
  • the grandparent had frequent visitation with the child for at least one year.3

​1 TN ST § 36-6-306(b)(1), (c)
2 TN ST § 36-6-306(b)(1), (b)(4)
3 TN ST § 36-6-306(b)(2)

How abuse affects the custody process

Can a parent who committed violence get custody or visitation?

The judge is supposed to take into account a parent’s history of physical or emotional abuse towards you, the child, or anyone else when making a custody decision. However, the best interests of the child and other factors will also be considered, and the abusive parent may still receive custody rights.1 If a parent has been convicted of any criminal sexual offense listed here against a minor, the judge will assume that the parent should not get custody.2 Also, if a parent is under indictment for aggravated child abuse, child sexual abuse, or severe child sexual abuse, s/he cannot get any sort of custody while the criminal case is pending unless s/he can prove to the judge that s/he does not present a substantial risk of harm to the child.3

Visitation may be awarded to a parent who has committed violence unless, after a hearing, the judge finds that visitation is likely to endanger the child’s physical or emotional health. If the judge determines that the non-custodial parent has physically or emotionally abused the child, the judge can require that visitation be supervised or that visitation is not allowed until such abuse has stopped or until there is no reasonable likelihood that such abuse will happen again.4 If the judge determines that the parent has committed child abuse or child sexual abuse, the judge can only award visitation under circumstances that guarantee the safety of the child. For example, the judge can order:

  • all visits must be supervised by a responsible adult or agency;
  • the abusive parent must go to counseling;
  • there can be no overnight visits;
  • the child’s address be kept confidential; and
  • anything else to keep the child safe.5

If a parent has been convicted of any criminal sexual offense listed here against a minor, the parent can only get supervised visitation if s/he is granted visitation at all.6

If a parent has willfully abandoned the child for 18 months or more, the parent’s residential time should be limited and s/he will likely be granted only limited visitation with the child. The term “willful abandonment” includes a situation where the parent substantially refuses to perform parenting responsibilities.7

1 TN ST § 36-6-106(a)(11)
2 TN ST § 36-6-101(a)(2)(A)(ii)
3 TN ST §§ 36-6-101(a)(2)(A)(v); 36-6-112(c)(2)
4 TN ST § 36-6-301
5 TN ST § 36-6-107(b)
6 TN ST § 36-6-101(a)(2)(A)(ii), (a)(2)(A)(iii)
7 TN ST §§ 36-6-406(a)(1); 36-6-101(a)(2)(A)(iv)

If my child was conceived from rape, can the offender get custody or visitation rights?

If your child was conceived due to sexual assault, the offender cannot get custody or visitation rights if the abuser was convicted of, pleads guilty to, or pleads no contest to any of the following crimes or to a lesser-included offense:

  1. aggravated rape;
  2. rape;
  3. rape of a child;
  4. aggravated statutory rape; or
  5. statutory rape by an authority figure.1

The only exception to this law is if you file in court to ask the judge to order visitation rights anyway.2

In addition, the judge can order the offender to pay child support for the child even without having any custody or visitation rights.3

In addition, you can file a petition to terminate the parental rights of the other parent if s/he is convicted of one of the crimes listed above in numbers 1 through 3 that led to the conception of your child.4 There are also multiple other crimes for which you could file to terminate the parental rights of the other parent even if the crimes are not committed against you. See If the other parent is convicted of a serious crime, can I file to terminate his/her parental rights? for more information.

1 TN ST § 36-6-102(a)
2 TN ST § 36-6-102(b)
3 TN ST § 36-6-102(c)
4 TN ST § 36-1-113(b)(2)(A)

If the other parent is convicted of a serious crime, can I file to terminate his/her parental rights?

You can file a petition to terminate the parental rights of the other parent if the parent has been convicted of:

1 TN ST § 36-1-113(b)(2)(A)
2 TN ST § 36-1-113(b)(2)(B), (g)(11)(A)(ii)
3 TN ST § 36-1-113(b)(2)(C)

If I am a domestic violence victim, would I be required to participate in mediation?

Most custody or visitation cases are referred to mediation to try to come to an agreement with the help of a mediator instead of going to trial. However, if you have a valid order of protection in effect or there was a court determination (“findings”) of domestic abuse, the judge can only send you to mediation if you agree to it and if the mediator is specifically trained in domestic violence. You would also have the right to have a support person with you, such as an attorney or advocate.1

1 TN ST §§ 36-6-107(a); 36-6-305

The effect of military deployment on custody/visitation

If a parent is in military service and deployed out of state, what happens to that parent's custody or visitation?

The military parent must notify the other parent about the deployment within seven days of receiving the notice of deployment. If the circumstances of military service prevent him/her from giving notice within seven days, notice must be given as soon as possible. Each parent must then provide the other with a proposed parenting plan to account for the deployed parent’s custodial responsibilities and/or visitation during his/her deployment.1

Note: If either parent has a court order requiring that his/her address remain confidential, the parent can submit the notice of deployment and the proposed parenting plan directly to the court that issued the order instead of sending it to the other parent.2

1 TN ST § 36-7-105(a), (b), (d)
2 TN ST § 36-7-105(c)

If a parent with custody rights has moved away due to military deployment, can the custody order be modified?

When a parent is deployed, s/he can give his/her custodial responsibility to another person, such as a grandparent, for example. In order for this to happen, there are two options.

1) The parents can enter into a temporary custody agreement that gives the parent’s custodial responsibility to another person. The agreement must be in writing and signed by both parents and by any non-parent who is getting custodial responsibility.1 The agreement should:

  • include the length and location of the deployment;
  • explain how the caretaking authority will be divided among the deploying parent, the other parent, and any non-parent with caretaking responsibility;
  • specify what decision-making authority, if any, will be given to each parent and non-parent;
  • provide a process for final decision-making when there is a disagreement regarding caretaking responsibilities between the non-deployed parent and a non-parent;
  • specify the type of communication that will take place between the deployed parent and the child, including the length of time, how often it will take place, any role to be played by the other parent in helping to carry out the contact, and who will pay for any costs of contact;
  • identify what contact is to occur between the deploying parent and child during the time the deploying parent is on leave or is otherwise available;
  • acknowledge that any change in either parent’s child support obligation cannot be changed by this agreement and that it must be handled in the appropriate court; and
  • provide that the agreement will terminate and go back to the terms of the original custody order once the deployed parent returns.2

2) If parents are unable to come to a temporary custody agreement, either parent can file a request with the court to issue a temporary order giving (“assigning”) another person the deployed parent’s custodial rights and responsibilities. If a custody case is already started, either parent can file a motion in that case. If a custody case is not already started, either parent can file an initial custody complaint to request that the court issue a custody order to address custody during the parent’s deployment.3

1 TN ST § 36-7-201(a), (b)
2 TN ST § 36-7-201(c)
3 TN ST § 36-7-302

If I file for custody during the other parent’s military duty, what happens when the parent returns from deployment?

If a non-deployed parent files for custody or custodial responsibility during a parent’s deployment, any order that the judge issues would be temporary unless it specifically says otherwise. The judge cannot issue a permanent custodial responsibility order without the consent of the deploying parent.1 Once the deployed parent returns, the temporary order would end.2

1 TN ST § 36-7-302(a)
2 TN ST § 36-7-307(a)

How will a court consider a parent’s absence due to military duty when deciding which parent gets custody?

When making a decision about which parent gets custodial responsibility, the judge is allowed to consider any significant impact of a parent’s past or possible future deployments on the best interests of the child. However, the judge cannot consider past or future deployment as the sole factor for determining custodial responsibility.1

1 TN ST § 36-7-107

After an order is in place

How can I change a custody order once it's in place?

If you are trying to change (modify) the part of the court’s order that deals with custody, you have to prove that there has been a substantial (material) change in circumstances since the order was issued. The law lays out the following examples as material changes of circumstances but there can be others as well:

If you are trying to change (modify) the part of the court’s order that deals with residential parenting schedule, you have to prove that there has been a substantial (material) change in circumstances that affects the child’s best interests since the order was issued. The law lays out the following examples as material changes of circumstances but there can be others as well:

  • significant changes in the needs of the child over time, which may include changes relating to age;
  • significant changes in the parent’s living or working condition that significantly affect parenting;
  • failure to follow the parenting plan; or
  • other circumstances that would make a change in the residential parenting time be in the best interest of the child.3

Note: To change the custody order or residential parenting schedule, you do not have to prove that there is substantial risk of harm to the child. However, if there is such a risk, this could be a reason to ask for the order to be changed.4

1 TN ST § 36-6-101(a)(2)(B)(i)
2 TN ST § 36-6-101(a)(2)(A)(v)
3 TN ST § 36-6-101(a)(2)(C)
4 TN ST § 36-6-101(a)(2)(B)(i), (a)(2)(C)

Is there anything I can do if my abusive partner continually files court proceedings against me?

Abusers often misuse court proceedings in order to continue the abuse. This is called an “abusive civil action” and the abuser would be considered an “abusive civil action plaintiff.” If you are dealing with an abusive civil action, you can ask the judge to issue an order dismissing the case and putting pre-filing restrictions on the abuser. See our Litigation Abuse section for more information on how to do this.

What steps must I take if I want to relocate? What type of notice is required?

After custody or co-parenting has been established in a permanent parenting plan or a final custody order, there are some steps that you need to take if you want to relocate. A relocation for these purposes means either moving out of the state or staying within the state but moving more than 50 miles from the other parent. The steps you must take are as follows:

  1. At least 60 days before the planned move, you need to send a notice to the other parent at his/her last known address by registered or certified mail. The judge can waive this requirement, however, if there are emergency circumstances. The notice must contain the following:
    • a statement that you plan to move;
    • the location of your new home;
    • the reasons for your proposed relocation; and
    • a statement that explains that if the other parent doesn’t object within 30 days of the date notice is mailed, or if the parents don’t come to an agreement, the law will allow the relocation.1
  2. It’s possible that once the other parent receives the notice, the two of you may agree upon a new visitation schedule or the other parent may file an objection. If neither happens within 30 days after you send the notice, you need to file a petition asking the court to approve the relocation. Then, the non-relocating parent has 30 days to file a response in opposition to the petition.
  3. If the non-relocating parent doesn’t file a response in opposition to your petition within 30 days of when you file the petition, then you and your child will be allowed to relocate.

1 TN ST § 36-6-108(a)
2 TN ST § 36-6-108(b)

What happens if the other parent files a petition to oppose the relocation? How will the judge make a decision?

If the other parent files a petition in opposition to your relocation petition, it will be up to the judge to decide if the relocation is in the best interests of you child.1 The judge will consider the following factors:

  • the nature, quality, level of involvement, and length of time of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant people in the child’s life;
  • the age, developmental stage, needs of the child, and the impact that the relocation will likely have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
  • how possible it will be to keep up the relationship between the non-relocating parent and the child through an appropriate visitation arrangement, considering the logistics and financial circumstances of the parties – and if the relocation is granted, it’s possible the judge could change the child support amount to account for the increased transportation costs;
  • whether the relocating parent has an established pattern of either encouraging or discouraging the relationship between the child and the non-relocating parent;
  • whether the relocation of the child will improve the general quality of life for both the relocating parent and the child, including, but not limited to, any financial or emotional benefits or educational opportunity;
  • the reasons that the relocating parent wants to relocate;
  • the reasons that the non-relocating parent has for opposing the relocation;
  • any other factor affecting the best interests of the child, including the best interest factors that are considered in a regular custody determination; and
  • the child’s wishes. Note: If the child is twelve years of age or older, the judge must consider the child’s wishes. If the child is under twelve, the judge could listen to the child’s wishes if either parent requests it. The wishes of older children will usually influence the judge more than those of younger children.2

At the conclusion of the case, the judge has the power to order one parent to pay the other parent’s reasonable attorney fees and other litigation expenses related to the relocation court proceeding if the judge believes it is appropriate to do so.3

1 TN ST § 36-6-108(c)(1)
2 TN ST § 36-6-108(c)(2), (d)
3 TN ST § 36-6-108(f)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.