Tennessee Law for Granting Custody to People Who Are Not Married
By Alisa Stevens
Tennessee child custody statutes overwhelmingly support the mother in cases where the parents of a child are not married. Although an unmarried mother's name on a child's birth certificate is sufficient proof of her custodial rights, it is not the same for an unmarried father. Even if he's named on the birth certificate, this only proves his relationship to the child; it does not assign any custody rights. A mother's right to custody is automatic under Tennessee law, whereas the unmarried father must initiate juvenile court proceedings in order to gain custody rights.
Under Tennessee Code Section 36-2-303, an unwed mother automatically gains custody of her child upon birth. No legal action is necessary to assert her custodial rights. She is solely responsible for providing for the child's needs and making decisions regarding the child's residence, medical care and education. Unless a court-ordered custody agreement states otherwise, it is her decision whether or not the father can see the child and what part he plays in the child's life.
Unlike an unmarried mother, the child's father has no presumptive right of custody to the child. As a result, he has no authority to make any legal or physical custodial decisions related to the child's care. Although an acknowledgment of paternity by the parents is helpful, this alone does not establish any paternal custodial or visitation rights without court intervention. The unmarried father must petition a Tennessee juvenile court for parenting time and physical and legal custody of the child.
An unmarried father can establish paternity by filing a complaint to establish parentage with a juvenile court in Tennessee. The parents can voluntarily acknowledge paternity through hospital documents or it can be determined through genetic testing. Tennessee courts accept genetic testing results submitted by parents or, in the case of a dispute, order genetic testing of the mother, father and child. Once paternity is established, courts can evaluate the situation based on the best interests of the child to determine custody.
Best Interest of the Child
Tennessee courts make custody decisions based on the "best interests of the child” standard. Under Tennessee Code 36-6-106, judges evaluate several factors before granting custody to the father. These factors include (1) the relationship between the parents and child; (2) parental stability, including the parents' mental health, physical health and ability to provide for the child's needs; and (3) any evidence of domestic violence or child abuse. In addition, the judge will take into consideration the opinions and preferences of children age 12 or older.
Although a child's father can file a petition for custody, Tennessee courts are unlikely to remove a child completely from her mother's care. Generally, a successful paternity action for an unmarried father results in visitation rights. In order to gain full custody, the unwed father must show that he is the better, more stable parent and it would be in the child's best interests to remove her from her mother's care. Reasons to change custody include suspicion of maternal child abuse or dependent neglect.
- Legal Aid Society of Middle Tennessee and Cumberlands: Unwed Mothers Have Legal Rights
- Tennessee Code Annotated Section 36-2-303: Custody Absent an Order of Custody
- Law Office of Charles Rich: Juvenile Court and Paternity Cases
- Tennessee Code Annotated Section 36-2-304: Presumption of Parentage
- Tennessee Code Annotated Section 36-6-106: Child Custody
- Tennessee Code Annotated Section 36-2-305: Agreement to Establish Parentage - Complaint to Establish Parentage - Parties - When Action May be Brought - Order of Protection
- Justia US Law: 2010 Tennessee Code Section 40-35-111 - Authorized Terms of Imprisonment and Fines for Felonies and Misdemeanors
- Tennessee Child Support Handbook: Paternity – Establishing Fatherhood
Alisa Stevens has been writing articles and business/marketing materials since 1994. She has experience writing for and about a variety of industries, including the legal, transportation, government and education sectors. Stevens holds a B.A. in journalism and an M.B.A. from Arizona State University, as well as a J.D. from Loyola Law School.