Tennessee Laws Regarding Children Over 12 in a Divorce

By Cindy Chung

Mother and daughter talking seriously

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Divorce can become a difficult experience for the children involved, especially if they must adjust to spending time in two households. Children may have preferences regarding where they will live if their parents divorce. Although a court may consider a child's preferences under some circumstances, the judge must also apply a number of custody factors established by Tennessee law. Accordingly, the court can approve a parenting plan that reflects the child's wishes, but the court might not necessarily do so in every case.

Parenting Plan in Divorce

When parents divorce in Tennessee, their divorce proceedings usually must include the negotiation of a parenting plan. A parenting plan establishes the decision-making rights of the child's mother and father. In addition, a parenting plan sets a schedule for parenting time that explains when the child will spend time with each of the parents. A parenting schedule might become complicated if an older child has school demands and extracurricular activities. If parents can write a parenting plan cooperatively or negotiate a parenting plan through mediation services, they do not need the court to establish the parenting plan on their behalf. If parents make their own parenting plan, they may choose to consider the wishes of their children, regardless of their children's ages. However, if parents cannot agree, a Tennessee court must eventually make a court order containing a parenting plan.

Preference of Child Over 12

When a judge determines the parenting plan because the mother and father cannot reach an agreement, the judge must decide the case based on the custody factors in Tennessee law. One of the factors specifically tells the court to consider the wishes of a child who is at least 12 years old. The child's preference must be "reasonable" when considered by the court. State law also tells the state courts that a judge may consider the preferences of a child younger than 12 years old, at the judge's discretion. State law instructs the judge to give more weight to the preferences of older children compared to the preferences of younger children.

Other Custody Factors

Although the court must consider the custody preferences of a child who is at least 12 years old, the court does not necessarily need to follow the child's preferences. The judge must review the entire list of custody factors established by Tennessee law and consider all factors applicable to the family. The other factors include each parent's mental and physical health, each parent's record of child abuse, if any, and each parent's demonstrated performance as the child's caregiver. These factors might require a different outcome than the one requested by the child. A judge must make a decision that reflects the "best interest of the child" after the divorce, regardless of the child's preferences.

Relocation After Divorce

Children, especially older ones, often do not want to move away from their friends, schools and communities. After a Tennessee court issues a parenting plan as part of a divorce, either parent may want to change the arrangement and relocate. If a parent would like to relocate more than 100 miles away from the parent's current home, both parents may need to return to court for custody proceedings if the non-relocating parent opposes the move. As with the establishment of the original parenting plan, a Tennessee court must consider a variety of custody factors to decide whether the parent may relocate with the child. The court must consider the reasonable preferences of children over the age of 12. However, the court must also consider the overall custody situation before making a decision based on the child's best interest.