Generally, Courts are required to “maximize the participation of both parents in the lives of their children consistent with the children’s best interest.” For more on that subject, check out our article located here. This is small comfort when the other person has abused your child, is on drugs, or simply has never taken on the responsibility of being a parent. When that happens a little-used statute applies. That statute is found at Tennessee Code Annotated 36-6-406 and tells us that when a parent is truly unfit for custody, the Court has the responsibility to limit, and even eliminate, time with your child.
As the Tennessee Supreme Court has said, “Before forging a residential schedule, a court must first determine whether either parent has engaged in any of the misconduct specified in Tennessee Code Annotated 36-6-406 which necessitates limiting the parent’s residential time with the child.” A court considers the fifteen custody considerations only if both parents are found by the court to be “fit.”
Proving that the other parent is unfit is a much harder thing to do than people realize. It’s not enough to be a bad parent or an uninvolved parent. You have to prove one of the following things:
- Willful abandonment or substantial refusal to perform parenting responsibilities for a long period of time – meaning, they did absolutely nothing, and they did it for years. This is more than failing to change any diapers ever, or failing to participate in the daily care of your child – this is when a parent has been almost entirely absent from the child’s life.
- Failing to provide for the child. That means more than not paying child support. This is failing to feed, clothe, house, or anything at all.
- Abusing the child or you. This is more than alleging domestic violence. This is proving it, and proving that it was so bad that this person should never be around the child. Ever.
- Using drugs chronically.
- Such other factors that the Court wants to consider. This is a catch-all, but the point is clear. A bad parent still gets time with their child. A completely neglectful, drug-using, abusing, generally terrible human being doesn’t.
The statute confuses our clients because it does NOT apply in Juvenile court cases – cases where your child has been abused or neglected by the other parent and you couldn’t do anything about it. This statute applies only in divorces and often applies if your child has not actually been abused or neglected because you have always been there to take care of your child, even when the other parent wasn’t.
This law can often cause confusion for our clients. Divorce is almost always accompanied by a feeling of betrayal. This person you promised to spend your life with has hurt you. You understandably feel they are a bad person. But your understandable, justifiable feelings of hurt do not always translate to the Court taking all time with your child away from the other parent. In fact, this statute is utilized only in the most extreme cases.
But sometimes, the extreme is the reality, and your child needs your protection. If you believe your child is in danger of abuse or neglect if left with the other parent, we will be here to help. Give us a call, and let’s get started.