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Barriers to child custody during divorce

In the past, Tennessee courts operated under the widely held presumption that sole or majority custody by one parent suited a child's best interests after a divorce of the child's parents. Shifting national and state attitudes towards custody currently challenge this legal preference, but there are still criteria which, when satisfied by one of the parents, preclude that parent's sole, partial or joint custody of the child in question.

The Huffington Post provides a valuable look into the value of collaboration during divorce cases. The article mentions the following benefits:

  • Financial outcomes are generally more balanced, potentially increasing each parent's ability to support a child
  • Parental agreement remains a major factor in determining joint custody and collaboration
  • Parents alleviate children's trauma by focusing on shared parenting plans rather than obtaining full custody

While the weight of legal presumptions on a court's parenting recommendation is often a matter of context, some absolute factors could prevent custody. The law is explicit in its terms that any previous findings of abuse automatically set the bias of the court against the offending party. The Tennessee Department of Children's Services outlines these specific situations that might qualify as abuse or neglect:

  • Chronic or isolated mental abuse or neglect
  • Sexual abuse of a child
  • Intentional injury against the child
  • Failure to support the child in terms of basic needs

The perpetrator of the abuse may rebut the court's adverse presumption if he or she wishes to pursue custody.

Short of a history of abuse, abandonment or other extenuating circumstances, Tennessee courts have a recent history of preferring coparenting in post-divorce settings. This legal trend is supported by the prevailing belief that it is in the best interest of the child to have both parents present to some degree, and that cooperation between parents often lessens the trauma of divorce.

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