Mother’s don’t automatically get custody of the children in a divorce?

The factors that go into determining child custody in a divorce are many, and are not cut and dry.  Laws in Tennessee and Mississippi provide several considerations for judges to reflect on before appointing one parent or the other as the primary residential parent. One factor is made explicitly irrelevant though: both states refuse to allow the gender of the parent to affect whether or not they are named the primary residential parent:

Tennessee Law States:

“It is the legislative intent that the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause a presumption in favor of or against such party.”  -  Tennessee Code § 36-6-412

Mississippi Law Says:

“There shall be no presumption that it is in the best interest of a child that a mother be awarded either legal or physical custody.”  -  Mississippi Code § 93-5-24 

We have found this especially difficult to get parents to believe, on both sides – as a mother, you are not guaranteed custody simply for being female, and as a father, you are not automatically denied custody simply for being a male.

Do not make assumptions without knowing the laws regarding your case. Contact a good Memphis divorce lawyer or Memphis child custody lawyer today to learn more about the factors that are relevant when determining child custody!

When Can Your Child Decide Which Parent He/She Wants to Live With?

One of our most frequently asked questions regarding a divorce here in Memphis or in Mississippi is “When can my child decide who they want to live with after my divorce.”

The answer is 18 (the age of majority). Until a child becomes an adult they may not decide on their own which parent to live with after divorce.

However, under both Tennessee child custody laws and Mississipi child custody laws, if a child is 12 or older the judge may hear testimony from the child (either in court or in chambers) as to the preference of the child. However the judge is not under any obligation to place the child in their preferred home. The preference of the child is merely one factor that the judge will consider in awarding custody to the primary residential parent.

The main consideration that the judge uses to determine custody is the best interest of the child. The preference of the child is only one consideration in determining what is in the best interest of the child. However, if all other considerations are equal then the preference of the child will often times be the tipping point.