Tennessee § 36-6-106 - Child custody.

§ 36-6-106. Child custody.

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: 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; 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; 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; The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care; 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; The love, affection, and emotional ties existing between each parent and the child; The emotional needs and developmental level of the child; 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; 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 importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; 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; 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; 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; Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and Any other factors deemed relevant by the court. Notwithstanding any law to the contrary, the court has jurisdiction to make an initial custody determination regarding a minor child or may modify a prior order of child custody upon finding that the custodial parent has been convicted of or found civilly liable for the intentional and wrongful death of the child's other parent or legal guardian. As used in this section, “caregiver” has the meaning ascribed to that term in § 37-5-501. Nothing in subsections (a) and (c) shall be construed to affect or diminish the constitutional rights of parents that may arise during and are inherent in custody proceedings. The disability of a parent seeking custody shall not create a presumption for or against awarding custody to such a party but may be a factor to be considered by the court. If the petitioner knows whether a child has ever been adjudicated by a court as a dependent and neglected or abused child or whether any party to the action has ever been adjudicated by a court as the perpetrator of dependency and neglect or abuse of a minor child, any petition regarding child custody shall include an affirmative statement setting out all applicable adjudications. If an adjudication has occurred as a result of a child protective services investigation, the court may order the department of children's services to disclose information regarding the investigation to protect the child from abuse or neglect consistent with § 37-1-612(h). The court shall consider any such information as a factor in determining the child's best interest. Acts 1995, ch. 428, § 2; 1998, ch. 1003, § 1; 1998, ch. 1095, §§ 2, 3; 2000, ch. 683, § 2; 2007, ch. 245, §§ 1-3; 2011, ch. 433, § 1; 2012, ch. 897, § 1; 2013, ch. 220, § 1; 2013, ch. 385, § 1; 2014, ch. 617, § 4; 2016, ch. 1074, § 1. Compiler's Notes. Acts 2000, ch. 683, § 4 provided that subsection (b) shall apply to all proceedings and petitions pending on May 8, 2000, and all arising on or after May 8, 2000. Acts 2012, ch. 897, § 2 provided that the act, which amended subdivision (a)(10), shall apply to all custody determinations on or after July 1, 2012. For the Preamble to the act concerning custody determinations involving disabled parents, please refer to Acts 2013, ch. 385. For the Preamble to the act concerning domestic relations, please refer to Acts 2014, ch. 617. Acts 2016, ch. 1074, § 2 provided that the act, which amended this section, shall apply to custody determinations made on or after July 1, 2016. Rule Reference. This section is referred to in Rule 40 of the Rules of the Supreme Court of Tennessee. Textbooks. Tennessee Jurisprudence, 14 Tenn. Juris., Divorce and Alimony § 31; 20 Tenn. Juris., Parent and Child, §§ 2, 5, 6. Law Reviews. Adoption and Custody: Current Trends in Tennessee Family Law: Bridge Over Troubled Water: Changing the Custody Laws in Tennessee, 27 U. Mem. L. Rev. 769 (1997). Alternative Dispute Resolution- Tuetken v. Tuetken: Reinforcing the Duty of the Court to Protect the Best Interests of the Child (Joshua Baker), 42 U. Mem. L. Rev. 831 (2012). Best Interest of the Child? A Critique of Judicially Sanctioned Arguments Denying Child Custody to Gays and Lesbians, 68 Tenn. L. Rev. 361 (2001). Covenant Marriage: Should Tennessee Join the Noble Experiment?, 29 U. Mem. L. Rev. 397 (1999). Family Matter: Helping Children Endure Divorce (Marlene Eskind Moses), 49 Tenn. B.J. 34 (2013). Family Matters: Modification of Permanent Parenting Plans In Tennessee, 49 Tenn. B.J. 27 (2013). Mother May I…Live? Parental Refusal of Life-Sustaining Medical Treatment for Children Based on Religious Objections, 66 Tenn. L. Rev. 499 (1999). The Art of Having Three Biological Parents, 50 Tenn. B.J. 36 (2014). When a Child's Best Interests Are At Issue: Privacy of Mental Health Records In Divorce and Custody Proceedings, 49 Tenn. B.J. 21 (2013). “Where Have You Been Fran?” The Right of Siblings to Seek Court Access To Override Parental Denial of Visitation, 66 Tenn. L. Rev. 977 (1999). Attorney General Opinions. Standard of proof in child custody cases, OAG 96-068, 1996 Tenn. AG LEXIS 66 (4/10/96). Obtaining a parent’s mental-health information in child-custody cases. OAG 14-55, 2014 Tenn. AG Lexis 57 (5/14/14)