Can a child decide which parent to live with?

Great Question!

When parents divorce or separate in Tennessee, one of the most significant decisions to be made is where the children will live and how parenting time will be divided. It's a question that often brings up the emotional query: can a child decide which parent to live with in TN?

The short answer is: not directly, and not solely based on their preference, especially at a young age. However, a child's wishes become increasingly important as they mature, and Tennessee law specifically accounts for this.

The "Best Interests of the Child" Standard

In Tennessee, all decisions regarding child custody (now often referred to as "parental responsibilities" and "residential schedules") are made based on the "best interests of the child." This is the paramount legal standard that judges must apply.

Tennessee Code Annotated Title 36, Chapter 6, Part 1, Section 106 outlines a comprehensive list of factors a court must consider when determining the best interests of the child. These factors include:

  • The love, affection, and emotional ties existing between the parents and child.
  • The character and emotional stability of the parents.
  • The child's psychological, emotional, and developmental needs.
  • The moral, physical, mental, and emotional fitness of each parent.
  • The child's reasonable preference (if the child is 12 years or older).
  • The stability of the family unit and the child's adjustment to home, school, and community.
  • The child's cultural and religious background.
  • Evidence of child abuse, neglect, or domestic violence.
  • Each parent's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent.

You can review the full text of the statute here:

When a Child's Preference is Considered

While younger children's preferences are generally not given significant weight, Tennessee law explicitly states that if a child is 12 years of age or older, the court shall consider the child's reasonable preference in choosing the parent with whom to live [02:00].

  • 12 and Older: A child age 12 or older has their "reasonable preference" considered. This does not mean they get to make the final decision. The court will still weigh all other "best interest" factors. The court evaluates if the preference is genuine, well-reasoned, and not unduly influenced by one parent or external factors.
  • Under 12: For children under 12, their preference is typically not directly considered by the court as a factor in the same way. The court generally assumes that younger children lack the maturity to make such a significant decision in their own best interest.
  • Maturity Matters: Even for children 12 and over, the judge assesses the child's maturity and the reasons behind their preference. A preference based solely on which parent allows more screen time or fewer rules might not be deemed "reasonable" by the court [03:00].

How a Child's Preference is Expressed in Court

A child's preference is usually conveyed to the court in a private setting, often through:

  • In-Chambers Interview: The judge may speak with the child privately in their chambers, sometimes with only a court reporter present, to understand their feelings and reasons without parental pressure.
  • Guardian ad Litem (GAL) or Attorney for the Child: In some cases, a GAL or an attorney is appointed to represent the child's best interests. This professional will investigate the child's wishes and present that information, along with other relevant factors, to the court [03:55].
  • Psychological Evaluation: A child psychologist may interview the child and provide a report to the court about the child's emotional state, preferences, and the underlying reasons.

It's important to note that children are rarely, if ever, put on the witness stand to testify in open court in custody cases, to protect them from further trauma and stress.

What if Parents Agree with the Child's Preference?

If both parents agree that the child's preference should be honored, and the court finds that this arrangement is still in the child's best interests, then the court is likely to approve it. However, even with parental agreement, the court retains the final say to ensure the child's well-being is prioritized.

Video Resource: Child's Preference in TN Custody Cases

For a more detailed explanation of how a child's preference is handled in Tennessee custody cases, watch this informative video:

Conclusion

While a child in Tennessee cannot unilaterally decide which parent to live with, their voice becomes a significant factor once they reach the age of 12. The court's primary duty remains to determine what serves the best interests of the child, taking into account a wide range of factors, including a mature child's reasonable preference.

Navigating child custody issues can be complex and emotionally charged. If you are facing a custody dispute in Tennessee, seeking advice from an experienced family law attorney is crucial to understand your rights and the legal process.

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