A Child’s Preference in Tennessee Child Custody Cases

A Child’s Preference in Tennessee Custody Decisions

In the recent decision Roberts v. Roberts, the Tennessee Court of Appeals addressed the issue of when a trial court must consider the reasonable preference of the child in a child custody case. Under T.C.A. § 36-6-106, the trial court shall consider all relevant factors, including the following, where applicable:

(13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.

The key word in the code section is “shall.” In other words, the trial court must consider the reasonable preference of a child 12 years or older, along with all other factors set out in T.C.A. § 36-6-106 that exist in the case. Whether the Court is swayed by the child’s preference is immaterial. What the Court cannot do is refuse to hear the child’s preference if (1) the case involves a child custody dispute; (2) one of the children is at least 12 years of age; and (3) either parent (or his/her attorney) requests that such child’s testimony regarding the child’s preference of the parent with whom he/she lives be made known to the trial judge.

In Roberts, the trial judge refused to allow a child who was of age to testify, even in chambers, about which parent he preferred to live. The father attempted to make an offer of proof to the trial judge regarding the same and such offer of proof was objected to by the mother’s attorney based upon hearsay, which was sustained. Therefore, the child’s preference was not admitted into evidence in any way. The Tennessee Court of Appeals ruled this to be an abuse of the trial judge’s discretion because the statute employs the word “shall” when stating what the trial judge is to consider when making its determination about which parent will be Primary Residential Parent. So, in the end, if one parent wants the judge to consider the desire of his/her child, the trial judge must at least consider it. If they choose to rule against the child’s preference, if the preference is reasonable, then they may do so. But they have to consider it.

You can read the full decision here.

Thanks for reading and happy parenting.

Sam F. Robinson III

Attorney at Law

Chattanooga, TN

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