Custody

An action to either obtain, or to retain custody of your child or children is a complex, trying,  and emotionally charged undertaking requiring experienced and effective legal counsel.  The attorneys of Batson, Nolan, Pearson, Miller & Joiner
are well versed and experienced in handling custody actions.  We understand the bond between parent and child and that as a parent you will make any sacrifice for your child/children's well being and happiness. Since the firm's origination in 1859, BNWP&M's attorneys have successfully represented clients in suits both to change custody and to retain custody of our clients' children.  We hope that we may be of service to you. 

Generally, custody suits are difficult and hard fought by both sides as each side wishes to be the custodian  (now known as the primary residential parent), of the children.  Due to the complexity of custody actions there is no substitute for knowledgeable, experienced counsel who routinely handle custody cases.  Batson, Nolan, Pearson, Miller & Joiner
's attorneys represent clients in such cases in the trial courts in Tennessee as well as in the appellate courts, and the Tennessee Supreme Court. 

Attorneys in BNWP&M's domestic litigation section work together drawing upon each others experience to provide our clients with the best possible representation.  Our clients receive  timely, straight forward answers to their questions and are kept informed throughout each stage of the custody case as to the specific issues and the law governing the same. 

We look forward to putting our experience and expertise to work for you and we invite you to contact one of our domestic attorneys at your convenience to discuss your case. 

Facts Pertaining to Custody Suits

For simplicity purposes, custody cases are classified here in two categories: (1) original custody actions; and, (2) actions seeking to change a prior custody determination.

Original Custody Actions

An original custody action involves the court's initial  placement of the child or children with one parent.  This original placement will be made by the court based upon the "best interest" of the child/children and a "comparative fitness evaluation" in which the court compares and contrasts the parties to determine who is most fit to be the custodian (i.e. the primary residential parent), of the child/children.  Determinations of the "best interests" of the children and decisions as to "comparative fitness" entail numerous facts and considerations and you should seek legal counsel for a more detailed explanation and analysis of your case.  

However, many of the factors the court will consider and take into account in determining custody are found in Tennessee Code Annotated Section 36-6-106 (a) (1)-(10) (2001). These factors include the following:

(1) The love, affection and emotional ties existing between     the parents and child;
(2) The disposition of the parents to provide the child with food, clothing, medical   care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; ...
(4) The stability of the family unit of the parents;
(5) The mental and physical health of the parents;
(6) The home, school and community record of the child;
(7) The reasonable preference of the child if twelve years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; ...
(9) 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; and
(10) 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 parent-child relationship between the child and the other parent, consistent with the best interest of the child.

The trial courts are given wide discretion at law to make custody decisions and the above factors are only some of the facts that the court will consider in making a custody placement. Additional factors the court will consider and take into account include the parties' demeanor and credibility. The court will then make its decision based upon the preponderance of the evidence that will be presented in the trial of your case. Accordingly, preparation of such evidence is an essential component in preparing a custody case for trial.  

Actions Seeking to Change a Prior Custody Determination

An action to change a prior award of custody differs from an action in which the court is called upon to make an original custody placement.  In an action to change custody, the party wishing to change custody has the burden of proving that the "best interest" of the children require the change.  This person for legal purposes is often called the "movant."  If the "movant" fails to carry his or her burden by presenting sufficient evidence, custody will not be changed.  As such, to have custody changed the party wishing the change must first prove by the preponderance of the evidence presented that a "material change of circumstances has occurred" that did not exist when the court entered its prior custody order.  

For the purpose of this summary, "a material change of circumstances" means that new facts have arisen that affect the interest of the child/children in a material way and these facts were not anticipated or foreseeable at the time of the last custody order.

After a "material change of circumstances" has been established, the party requesting the change must then establish that he or she is more fit to have custody (i.e. be named as the primary residential parent), than the other parent/party.  The above factors of T.C.A. section 36-6-106 (a) (1)-(10) will be considered in making this determination.  In addition to those factors, numerous other facts and issues may be considered. After all facts have been considered and the comparative fitness evaluation made by the court, custody will be changed if the court finds that he "best interest" of the child/children require the change.  If the best interest of the children do not require a change custody will remain with the original parent with whom custody resided at the initiation of the suit.

JMMiller@batsonnolan.com