The Best Interest of a Child Expanded Again

One of Tennessee’s most important statutes relating to child custody has been expanded once again.  T.C.A. § 36-6-106 is a crucial child custody statute that courts look to when determining what schedule is in the best interest of the child.

Previously, a court would consider the following factors when making a custody determination based on the best on the best interests of the child:

(1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;

(2) Each parent's or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;

(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;

(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(6) The love, affection, and emotional ties existing between each parent and the child;

(7) The emotional needs and developmental level of the child;

(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;

(9) The child's interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child's involvement with the child's physical surroundings, school, or other significant activities;

(10) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;

(11) Evidence of physical or emotional abuse to the child, to the other parent, or to any other person, including the child's siblings. The court may, where appropriate, refer any issues of abuse to juvenile court for further proceedings;

(12) The character and behavior of any other person who resides in or frequents the home of a parent and such person's interactions with the child;

(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;

(14) Each parent's employment schedule, and the court may make accommodations consistent with those schedules;

(15) Any other factors deemed relevant by the court; and

(16) Whether a parent has failed to pay court-ordered child support for a period of three (3) years or more.

 However, more recently, a factor has been added and one has been altered. The statute T.C.A. 36-6-106’s most recent changes went into effect July 1, 2025. Tenn. S. 943 114th Cong. (2025). Factor (15) has been deleted and replaced by the following language, “Whether a parent has had custody or parenting time reduced or restricted in the past and if so, the reasons custody or parenting time was relinquished.” Factor 16 has been deleted and replaced by the following language “Whether a parent has failed to pay court-ordered child support.” Lastly, a 17th factor has been added, stating “[a]ny other factors deemed relevant by the Court.”

            So, how will the recent change effect custody determination? It could affect custody determination in several ways. First, the new language allows the Court to look at a parent’s past behavior relating to why a parent’s parenting time has previously been restricted, which could make it more difficult for a parent to get more parenting time that has had previously had parenting time reduced or restricted. Second, when a parent fails to pay court-ordered child support, a court will consider the non-payment as it relates to the best interest of the child.  Previously, a parent would have to fail to pay child support for a period of three or more years before the court could consider a parent’s failure to pay as part of its best interest analysis.  However, the new statutory language allows a Court to consider a parent’s failure to pay, even if the parent has only failed to pay child support for one month.