Does a Child Have a Say in the Custody Agreement?

You and your spouse are divorcing with one child. You want custody of the child. So does your spouse. But the main concern might be: who does the child want to live with?

This is something you may have to keep in mind if your child is older. In any divorce with minor children, a parenting plan will need to be created to outline various details such as day-to-day schedules of residential time, holiday schedules, transportation arrangements, child support, and more.

The parent with whom the child is scheduled to reside the majority of the time must be designated as the primary residential parent. But which parent will it be? (If both parents are sharing equal time, other designation can be made, but that is not the subject of this article.)

If the parents cannot decide on child custody on their own, then the court will make the decision. When this happens, the child might be able to voice a preference, without having any control over the decision the court makes. Under Tennessee’s child custody statute (TCA § 36-6-106) as it stands at the time this article is written, the judge is required to consider a whole list of factors, including the reasonable preference of a child who is twelve years of age or older; and the court may hear the preference of a younger child upon request. The statute states that the preference of older children should normally be given greater weight than those of younger children.

However, the child’s wishes do not have to be automatically granted. Their preference will not control the outcome. If the child wishes to be with their father, they may still end up with their mother. That is because child custody is based on the best interests of the child, and there are many other factors involved besides the child’s preference.

The best interests of the child include factors such as:

• The degree of each parent’s role as caregiver for the child
• The child’s relationship with each parent
• The child’s relationships with siblings and other family members
• The child’s involvement with his/her physical surroundings, school, or other significant activities
• Each parent’s moral, physical, mental, and emotional fitness as it relates to their ability to parent the child
• Any history of domestic violence or emotional abuse
• Each parent’s work schedule
• Other factors that are relevant

In Tennessee, the trial judge has a lot of discretion in deciding what is in the best interests of the child.  So, while the child does not have the final say in who they will live with, their opinion does matter in some cases. And judges will try their best to make sure the decision they make is best for the child.

Contact Judy A. Oxford, Attorney at Law

Child custody can be a contentious issue. Parents may often argue about custody and residential parenting time for the children, but older children might possibly wish to state a preference about custody.

Judy A. Oxford, Attorney at Law, can assist you with child custody issues and help you understand your rights and responsibilities. I will help you try to reach your goals and try to attain a favorable outcome. Call (615) 791-8511 to schedule a consultation with Judy A. Oxford, an attorney practicing in Franklin and Brentwood, Tennessee.