Thursday, October 27, 2011

"What's good for the goose is good for the gander."

For those of you who don't know, a "gander" is a male goose.  "Male goose" is really a misnomer because a "goose" is a female and a "gander" is a male.  There is no such thing as a male goose.  So what does this have to do with divorce?

Tennessee's child custody statute changed in June, 2011, specifically, the new statute reads as follows:

"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 below, the location of the residences of the parents, the child's need for stability and all other relevant factors." Tennessee Code Annotated § 36-6-106(a).

The "maximum participation" language is what is new about the statute.  This new language has been added to the statute due, in part, to the efforts of father's rights advocates.  But let's be clear, the bottom line remains the same: the child's best interest is the ultimate concern of every court in every custody case.  It's too early to tell how the new language will affect the decisions of our Tennessee courts, if at all, but it is important language to consider when arguing your case before the court.

In the quote provided above, you'll notice that it also mentions "all relevant factors."  Below is a list of the main factors that the court considers, but the court may consider any other factors it considers important when making its decision:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if twelve (12) years of age or older;

(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;

(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person's interactions with the child; and

(10) 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.

Tennessee Code Annotated § 36-6-106(a).


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