After practicing family law for two years in New York City, my husband and I relocated to Tennessee, and I found myself facing the imposing task of preparing for the Tennessee bar exam. As I dutifully made my little flashcards and began to review family law, I discovered something puzzling: the factors used by the court to determine the best interests of the child were different depending on which statute governed the question at issue. For child custody matters, Tenn. Code Ann. 36-6-106(a) listed 10 factors for the court to consider in making a best interests of the child determination. However, for purposes of approving a permanent parenting plan, Tenn. Code Ann. 36-6-404(b) listed 16 factors, many of which differed from the 10 factors in the child custody statute. And to complicate matters even further, a third list, consisting of 11 factors found in Tenn. Code Ann. 36-6-108(c) and (e), was to be used for analyzing the best interests of the child for purposes of parental relocation determinations, and its list was not entirely consistent with the other two lists.

The good news is, the legislature has recently sought to rectify these discrepancies, and in an effort to avoid “confusion and inconsistent application of the law,” has passed Tennessee Public Chapter No. 617 effective July 1, 2014. Public Chapter No. 617 amends Tenn. Code Ann. 36-6-106(a), 36-6-404(b), 36-6-108(c) and (e) so that the list of factors to be considered by the court regarding the best interests of the child is now the same set of 15 factors for each area of domestic law. Here’s a brief overview of what’s changed.

Tenn. Code Ann. 36-6-106(a) Child Custody

Public Chapter No. 617 deletes the list of 10 factors that was originally in this subsection and replaces it with a new list of 15 factors, which is provided at the end of this article. This new list includes most of the original 10, but excludes original subsections (4) “the stability of the family unit of the parents or caregivers” and (6) “the home, school and community record of the child.”

The new list provided by Tennessee Public Chapter No. 617 also contains a slightly reworded version of original subsection (5) “the mental and physical health of the parents or caregivers,” which now reads “the moral, physical, and emotional fitness of each parent as it relates to their ability to parent the child.” The new version of this factor can be found in (8) of the new list.

The factors that are new to Tenn. Code Ann. 36-6-106(a) as a result of Public Chapter No. 617 include (1) “the strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child,” (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,” (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,” (7) “the emotional needs and developmental level of the child” and (14) “each parent’s employment schedule, and the court may make accommodations consistent with those schedules.”

36-6-404(b) Permanent Parenting Plan

The 16 factors listed in this subsection have been deleted by Tennessee Public Chapter No. 617 and replaced with language directing the reader to the 15 factors newly provided in 36-6-106(a) discussed above. The new list excludes original subsection (1) “the parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.”

The new list provided by Tennessee Public Chapter No. 617 also contains a slightly reworded version of original subsection (9) “the character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child” which now reads “the moral, physical, and emotional fitness of each parent as it relates to their ability to parent the child …” in (8) of the new list.

The rest of the factors from the original list remain the same, albeit in a different order than before.

36-6-108(c) and 36-6-108(e) Parental Relocation

The 11 factors listed in this subsection have been deleted by Tennessee Public Chapter No. 617 and replaced with language directing the reader to the 15 factors newly provided in 36-6-106(a) discussed above. The new list excludes original subsection (8) “the home, school, and community record of the child.”

The factors that are new to Tenn. Code Ann. 36-6-108(c) and (e) as a result of Tennessee Public Chapter No. 617 include (1) “the strength, nature, and stability of the child’s relationship with each parent, including whether one 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,” (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,” (7) “the emotional needs and developmental level of the child,” and (14) “each parent’s employment schedule, and the court may make accommodations consistent with those schedules.”

The new list provided by Tennessee Public Chapter No. 617 also contains a slightly reworded version of original subsection (7) “the mental and physical health of the parents,” which now reads “the moral, physical, and emotional fitness of each parent as it relates to their ability to parent the child …” in (8) of the new list.

In a Nutshell

As of July 1, 2014, the list of factors to be considered by the court under Tenn. Code Ann. 36-6-106(a), 36-6-404(b), 36-6-108(c) and (e) is now uniform among all three statutes. Future bar candidates can save money on flashcards and current practitioners can refer to one list whether advising their clients on child custody, permanent parenting plans or parental relocation. Below is the new list of 15 factors provided by Tennessee Public Chapter No. 617, which replaces the list of factors originally found in Tenn. Code Ann. 36-6-106(a), and to which practitioners are now referred by 36-6-404(b), 36-6-108(c) and 36-6-108(e).

The New List:?Tennessee Public Chapter No. 617

SECTION 4. Tenn. Code Ann., Section 36-6-106(a), is amended by deleting the language “consistent with the factors set out in subdivisions (a)(1)-(1 0)”, and by substituting instead the language “consistent with the factors set out in this subsection (a)”; and is further amended by deleting subdivisions (1)-(10) and by substituting instead the following:

1. The strength, nature, and stability of the child’s relationship with each parent, including whether one 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 § 33-3-1 05(3). The court order required by § 33-3-1 05(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. The court shall, 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 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; and
15. Any other factors deemed relevant by the court.

SECTION 5. Tenn. Code Ann., Section 36-6-108(c), is amended by deleting the language: “The court shall consider all relevant factors including the following where applicable:” and by substituting instead the language “The court shall consider all relevant factors including those factors found in§ 36-6-106(a)(1)-(15).”; and is further amended by deleting subdivisions (1)-(11).

SECTION 6. Tenn. Code Ann., Section 36-6-108(e), is amended by deleting the language “the court shall make a custody determination and shall consider all relevant factors including the following where applicable:” and by substituting instead the language “the court shall consider all relevant factors including those factors found in § 36-6-106(a)(1)-(15)”; and is further amended by deleting subdivisions (1)-(11).

SECTION 7. Tenn. Code Ann., Section 36-6-404(b), is amended by deleting the language “If the limitations of § 36-6-406 are not dispositive of the child’s residential schedule, the court shall consider the following factors:” and by substituting instead the language “If the limitations of § 36-6-406 are not dispositive of the child’s residential schedule, the court shall consider the factors found in§ 36-6-106(a)(1)-(15).”; and is further amended by deleting subdivisions (1)-(16).

SECTION 8. This law shall take effect July 1, 2014, the public welfare requiring it.

SHAINA ZAKALIK received her law degree from Brooklyn Law School in 2007. She began her legal career with the New York City Administration for Children’s Services — Family Court Legal Services as an agency attorney, representing the commissioner of Social Services in child abuse and neglect cases in Brooklyn Family Court. She then worked for the Center for Family Representation as a staff attorney, representing parents with abuse and neglect cases pending in Manhattan and Queens Family Courts. She was admitted to the Tennessee bar in 2014, after relocating to Memphis from New York City.