How Custody Works
Nothing is more stressful than worrying about what is going to happen to your children when you get divorced. There are a lot of horror stories and inaccurate conventional “wisdom” out there about how custody determinations work and what either parent can do about it. Most people believe there is a prejudicial bias towards mothers and against fathers, but that doesn’t appear to be true in my experience. Courts order what is in the children’s best interests and that is often different from what either parent wants.
The Permanent Parenting Plan
The first thing to understand is that everything about your children will be contained in a written order called a Permanent Parenting Plan. This is a form created by the Tennessee government, but lawyers often do customize them for our preferred terms and practices. You can view the state form here:
Parenting Plan Forms | Tennessee Administrative Office of the Courts (tncourts.gov)
One thing you might notice is that the term “custody” is not used to describe parental roles. Instead we use the term “primary residential parent,” to describe which parent has what people commonly call custody. Each parent has the exact same parental rights as the other, and being the PRP does not bestow any special privileges on that parent. All it means is that is where the child resides a majority of the year. The most common place for this to make any difference is zoning for public school districts as some school districts will strictly apply residency requirements for enrollment.
The rest of the plan is mostly about when the other parent has parenting time, so there are a few pages of holiday and school break terms. In the vast majority of cases the weekends and school breaks are all split evenly. This results in two common plans: “standard,” which is where the child lives at one parent’s house during the school week and everything else is split or “equal,” which is where the parents take turns each week with seven days on and seven days off. You can customize the plan as much as the court will allow to fit your schedule, but that is what happens in the vast majority of cases.
When You Don’t Agree
If you and your spouse are not able to agree to a parenting schedule on your own or at mediation, then the court will have to decide. This doesn’t actually happen that often in divorce cases as the overwhelming majority of cases are resolved at mediation, but if you go to trial you will be asking the judge to give their own opinion of what is best for your children and this is where things can go astray.
It is important to understand the judge is not trying to treat the parents fairly or equally. They are trying to determine what is in the child's best interest, and there are laws detailing what things they may consider. In the broadest sense, the child’s best interest is served by keeping their routine as similar as possible while simultaneously maximizing the child’s access to each parent. You must focus on the idea that the judge is working from the child’s perspective and not the parents’ preferences. For that reason, there will always be a strong preference for doing what you have already been doing, so the parent doing most of the parenting before the divorce will often continue to do so after the divorce in order to keep the child’s routine the same.
How to Reverse the Situation
The problem a lot of fathers have is that they haven’t really been the primary caretakers of their children on a day-to-day basis, especially with infants and toddlers, so if they get divorced at that time, they feel like they don’t have much leverage to get equal time or primary residency. Generally speaking, the court isn’t going to order something radically different than what you and your spouse were doing voluntarily, so what type of facts can turn that situation around?
Drug/Alcohol Use: if one parent is now using drugs, especially hard drugs like meth or opiates, then they can just forget about being in the child’s life any time soon. I’ve even had a judge issue an order of no contact between a mom and her daughter because of drug use. There will be a high barrier to proving a drug using parent has been rehabilitated and is now safe to have parenting time.
Overnight Work Schedule: if a parent works nights, then they will not have parenting time on their workdays. You don’t get to send the child to grandma’s house five nights a week if the other parent is available.
Abuse: any parent that has been found to be abusing the child will likely be required to have supervised parenting on a limited schedule until that parent has been appropriately rehabilitated. If a parent is a registered sex offender or is cohabiting with a registered sex offender, then supervised parenting may be permanent.
Imprisonment/Deportation: obviously if a parent is incarcerated or deported out of the U.S., then the other parent will have primary residency regardless of what was happening before.
Distant Relocation: if a parent moves far away from where the child has been living and has all of his friends, family, school, etc., then the court will make a determination if the cost of moving is worth it for the child or the court may order the child to stay and live with the other parent. The reason for the move matters a lot though, so if you get relocated for a much better job, then it is much more likely to get approved than if you move a thousand miles away for no good reason.
The bottom line here is that in order to get a custody and visitation order that provides for the most parenting time for each parent, you need to be maximizing your involvement in your child’s life before you end up needing lawyers. If the other parent has dominated the parenting situation in your relationship, then you are likely going to have to settle for what you can negotiate at mediation. Once you get to court it is often too late to change directions unless something drastic has occurred.
