5 WAYS TO GET CUSTODY OF YOUR CHILDREN IN A DIVORCE
The first question my clients usually ask when they enter a consultation is, "how can I get custody of my kids?" The harsh reality is that, most often, only one parent is going to be designated as the primary residential parent for the children. As the name suggests, the primary residential parent is the parent with whom the children will primarily live. The children will spend the vast majority of their time with this parent. On average, this parent will have custody of the children for 277 days out of the year, while the other parent (the non-custodial parent) will have custody just 88 days. Divorcing parents may negotiate who will become the primary residential parent. This is certainly the easiest and most cost effective way to go about it. But, as you might imagine, this decision is not always agreed upon easily. In the event both parents want to be the primary residential parent, the decision will be up to the judge. Here are 5 areas to focus on so that you can become the best candidate for primary residential parent:
1. DO NOT DATE ANYONE. This proves difficult for many of my clients, but if you want to prove to the judge that you have your children's best interest in mind during this difficult time in their lives, start here.
2. ACT IN YOUR CHILD'S BEST INTEREST. This seems like a no-brainer, but it can be easy to lose sight of during a divorce. Too often, I see parents who drag their children into fights by telling them about grown-up things and grown-up conversations. Don't do this. It's bad for your children, and it's bad for your goal of proving to the judge that you are worthy of being the primary residential parent. Children should be kept out of the divorce proceedings as much as possible.
3. KNOW THE FACTORS THE COURT IS GOING TO CONSIDER. In Tennessee, factors Courts will consider in child custody determinations are found in TN. Code Ann. § 36-6-106:
(a) 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:
(1) 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;
(2) 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;
(3) 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;
(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(5) 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;
(6) The love, affection, and emotional ties existing between each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) 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;
(9) 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;
(10) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(11) 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;
(12) 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;
(13) 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;
(14) Each parent's employment schedule, and the court may make accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
4. HONESTLY ASSESS STRENGTHS AND WEAKNESSES. How do you stack up relative to your child's best interest given the factors above? Honest self evaluation is difficult. It's hard to get outside ourselves and honestly imagine what a judge will see. But if you want to be successful in your bid to become primary residential parent, it's a must. This is one area where an attorney is invaluable. An experienced attorney can help you evaluate how your parenting skills, life skills, and socio-economic situation both before and after divorce will be viewed by a judge, and what you can do to work on it if need be. You will want to look at the factors above and think about how the evidence that you can gather will prove to the judge that you are the best choice for primary residential custody. Likewise, you will want to evaluate your spouse's strengths and weaknesses in light of the factors above focusing on what evidence supports your assertion that you are the best candidate to become the primary residential parent.
5. GET THE GOODS (EVIDENCE). Like all court proceedings, your divorce and custody case will require you to put on evidence in front of a judge. Many divorces come after inappropriate conduct by one or both parties. If your spouse is guilty of inappropriate conduct, the trick becomes proving it. In many situations, I highly recommend getting a private investigator. But that's not the only way to gather evidence. Always save text messages and email communications. I also recommend recording your telephone conversations. Sometimes my clients are concerned with their spouse's mental health. In this situation, it is often beneficial to request the court to order a mental health evaluation. You must gather evidence legally so that you can prove to a judge that your child's best interest requires you to be the primary residential parent.
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