When parents in Middle Tennessee begin the process of ending a marriage, the most emotional and complex hurdle is often the parenting plan. A common question that arises is whether a child has the legal right to choose which parent they want to live with. While children certainly have feelings and preferences, the legal reality in Tennessee is more nuanced than a simple choice.
In Nashville, the court operates under the guiding principle of the best interests of the child. This means that a judge will not simply follow a child’s wishes without evaluating the entire situation. However, Tennessee law does allow the court to consider a child’s preference if they have reached twelve a certain level of maturity.
Under Tennessee Code Annotated Section 36-6-106, the court may consider the reasonable preference of a child who is twelve years of age or older. It is important to note that the law says the court may consider this, not that it must follow it. If a child is younger than twelve, the court cannot consider their preference, although a child under twelve can still testify as a fact witness.
When a judge listens to a child’s preference, they are also looking for the “why” behind the choice. Is the child choosing a parent because that parent provides a stable, nurturing environment? Or is the child being manipulated by one parent against the other? Judges are highly experienced in spotting parental alienation or “bribery,” where one parent allows the child to have no rules or buys them expensive gifts to win their favor. If the court suspects the child’s choice is based on these factors, they may rule against that preference to ensure the child’s long term well being.
Beyond the child’s preference, the court examines several other factors to determine custody and residential time. These include the emotional ties between the parents and the child, the ability of each parent to provide food, clothing, and medical care, and the continuity of the child’s current environment. The court also looks at the physical and mental health of the parents and any history of domestic violence or child abuse. Understandably, custody determinations are very fact intensive, thus every case is truly unique. Tennessee law contemplates this and provides a catch all provision in the best interest factors, so a court can take into account any significant factors that are not provided for under the specific factors set out under Tennessee Code Annotated Section 36-6-106.
Navigating these conversations with your children during a divorce is incredibly difficult. You want to honor their feelings without putting them in the middle of a legal battle. It is often helpful to have a professional involved, such as a child psychologist, who can advocate for the child’s best interests in a neutral manner.
At Rogers, Shea & Spanos, we understand that nothing is more important than your relationship with your children. As a Nashville family law attorney, our firm works closely with parents to create parenting plans that protect the child’s stability while ensuring your rights are upheld. We provide the steady legal guidance needed to handle sensitive custody negotiations, whether that means working toward a collaborative agreement or litigating the matter in court. We can help you understand how a judge in Davidson County might view your specific situation and help you prepare for the road ahead.