As Father’s Day approaches, I am reminded of one of the hot topics in family law — fathers’ rights, specifically regarding those fathers who desire to spend more time with their children. In the last few decades, the issue of fathers’ rights in divorce situations has kept the trial and appellate courts quite busy. Most veteran attorneys will admit it was more difficult in years past for a father to win custody of his children and/or be awarded significant parenting time. But today, fathers are routinely being awarded more parenting time with their children.
In the summer of 2011, the Tennessee legislature passed an amendment to the custody statute, which requires trial judges to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of a child…” (T. C. A. § 36-6-106)
That requirement, along with other factors that have been in place for quite some time, are to be considered when making a custody determination during a divorce case. Custody factors include, but are not limited to:
• the love, affection and emotional ties existing between the parents or caregivers and the child; • the stability of the family unit of the parents or caregivers; • the importance of continuity in the child’s life; • the length of time the child has lived in a stable, satisfactory environment; • who has been the primary caregiver of the child
After the law was introduced in 2011, many attorneys were uncertain how the courts would interpret “maximum participation.” One of my first questions was:
“Does the requirement that a parent enjoy the maximum participation possible in the life of a child mean that parents should each receive an equal amount of time with the child?”
Nearly three years later, that question is still being clarified. The new law, passed as a result of years of lobbying by fathers’ advocacy groups, reflects the growing trend nationally that trial courts be more gender neutral in custody situations. Fathers have the same rights as mothers in custody cases in Tennessee, and there are no special requirements for fathers to obtain custody over mothers. However, most family law attorneys would agree that it is still difficult for fathers to obtain physical custody of small children when a suitable mother is involved. Fathers should be proud, though, as they are being heard in the court system now more than ever.
Custody and visitation issues are still dealt with on a case-by-case basis and the trial court judges still have significant discretion in making those decisions. If you have questions about your particular parenting arrangement, be sure to consult with an experienced attorney, as he or she will be able to give you insight into how the process works. If you are a father wanting more time with your children, the good news is things are trending in your favor.
— Justin Thomas heads the Thomas Family Law Firm, PLC, which focuses on family law in Tennessee and Mississippi. • thomasfamilylaw.net.