Typically, legal custody refers to a custody arrangement ordered by a court, but not always. For instance, Tennessee has a statute that provides legal custody of minor children born outside of the marriage to the children’s mother, in absence of a court order to the contrary.
Essentially, if you have a minor child born out of marriage in Tennessee, the law presumes the child’s mother has legal custody, which means as a father, you must file a Petition in Juvenile Court to even establish court-ordered visitation, much less, legal custody.
Conversely, in the context of a divorce proceeding, a court-ordered Permanent Parenting Plan establishes legal custody for a child. All divorces in Tennessee involving minor children require the entry of a Permanent Parenting Plan that sets forth critical information pertaining to parties’ minor children, including: the identity of the Primary Residential Parent (the individual who has legal custody of the children for more than 50% of the time), the visitation schedule for the Non-Primary Residential Parent, decision-making regarding the children, and child support.
Physical custody refers to the individual with whom the minor children are spending their time without regard to legal custody. For example, it is fairly common for a Permanent Parenting Plan or a Juvenile Court Order to be in place setting forth that one parent possesses legal custody of the minor children, but in reality, the child is staying with the other parent the majority of the time, contrary to the terms of the court order. In other words, the parent with whom the child is staying has physical custody of the children.
In situations such as this example, it is typically recommended that the parent with physical custody file something in court to alert the court that they have physical custody despite an existing order that confers legal custody to the other parent.
Regardless of whether or not a custody situation is being litigated as part of a divorce or an out-of-wedlock situation, all matters involving child custody in Tennessee are guided by the child’s best interests. That means while the parent’s wishes for custody are considered, the court must rule based on what it believes to be in the best interests of the children’s physical, emotional, and mental well-being.
The court can consider some of the following factors in this determination:
- The child’s relationship with each parent
- Who has been the primary caregiver for the child during the child’s life The work schedules of the parents
- Any other party who might be residing with a parent and who may have
- interactions with the child (a new live-in partner of one of the parents, for example)
- The desires of the child so long as the child is at least 12 years old
