Child Custody & Child Support
Discussion and FAQs
Child Custody and the Initial Parenting Plan:
Can both parents be named primary residential parent or can the designation be waived?
Yes, pursuant to TCA 36-6-410, but only if the child(ren) is scheduled to reside an equal amount of time with parents, and only by agreement.
What are the factors the Court considers in awarding child custody and parenting time?
In determining custody of a minor child, the court is to consider "all relevant factors." T.C.A. 36-6-106 lists numerous specific factors that the court can consider, where applicable. Those factors are as follows:
(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. 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 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.
While the aforementioned factors list specific considerations the Court can make, notice that factor (15) really opens the door to anything that might be relevant to the Court when determining child custody and/or parenting time.
The consideration of these factors by a trial court is more than just tallying up those in favor of each party and seeing who has the highest score. Instead, the specific circumstances of each case determine the relevancy and weight of the factors and a trial court's determination of a parenting plan could be based around any one factor.
Though withholding a child from visitation with the other parent when there is an existing parenting plan or court order can be a negative factor the court may consider when determining child custody (and may be punishable with contempt of court), Tennessee courts have ruled that it is inappropriate for the Court to negatively apply this factor when considering TCA 36-6-106(a)(2), which states “denying parenting time to either parent in violation of a court order.” It may still be relevant under factor 15, which states “any other factors deemed relevant by the court.”
Calculating Child Support:
Child Support Modification:
Do you include deviations to child support when determining if a significant variance exists?
No. When comparing the previously ordered child support to the current presumptive child support amount for the purpose of determining whether a significant variance exists, the court must “not include the amount of any previously ordered deviations or proposed deviations in the comparison.” See Tenn. Comp. R. & Regs. 1240-02-04-.05(4).
Is there a maximum amount of child support in Tennessee?
Yes (at least initially). The “maximum” amount of child support someone can be required to pay per month in Tennessee is:
(i) One child = $2,100;
(ii) Two children = $3,200;
(iii) Three children = $4,100;
(iv) Four children = $4,600; and
(v) Five or more children = $5,000.
See Tenn. Comp. R. & Regs. R. 1240-02-04-.07(g)(1).
Is it possible to get more than the maximum amount of child support in Tennessee?
Yes. Pursuant to Tennessee law, if the net income of the parent that owes child support exceeds $10,000 per month, then the parent to whom child support is owed must prove, by a preponderance of the evidence, that child support in excess of the amount provided for in the child support guidelines is reasonably necessary to provide for the needs of the minor child or children of the parties. In making the court's determination, the court shall consider all available income of the obligor and shall make a written finding that child support in excess of the amount so calculated is or is not reasonably necessary to provide for the needs of the minor child or children of the parties. In determining each party's income for the purpose of applying the child support guidelines, the court shall deduct each party's capital losses from that party's capital gains in each year. See T.C.A. § 36-5-101 (e)(1)(B).
It is also possible to get more than the maximum amount of child support for the reasons discussed below.
Can I get more child support than what is initially calculated?
Yes. The Tennessee Child Support Guidelines state that the child support established by the guidelines are rebuttable, and the court may order a deviation (either upwards or downwards) in a child support obligation if certain requirements are met. The primary consideration in deviating from the presumed child support amount is what is in the best interest of the child for whom support is being determined.
Additional child support can also be obtained by the showing of “extraordinary expenses.” Extraordinary expenses are in excess of these average amounts and are highly variable among families. For these reasons, extraordinary expenses are considered on a case-by-case basis in the calculation of support and are added to the basic support award as a deviation so that the actual amount of the expense is considered in the calculation of the final child support order for only those families actually incurring the expense. These expenses may be, but are not required to be, divided between the parents according to each parent’s percentage of the parties’ total monthly gross income.
Can I get reimbursed for educational expenses, such private school tuition?
Yes. Pursuant to the Tennessee Child Support Guidelines:
Extraordinary educational expenses may be added to the presumptive child support as a deviation. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and/or secondary schooling that are appropriate to the parents' financial abilities and to the lifestyle of the child if the parents and child were living together.
In determining the amount of deviation for extraordinary educational expenses, scholarships, grants, stipends, and other cost-reducing programs received by or on behalf of the child shall be considered.
If a deviation is allowed for extraordinary educational expenses, a monthly average of these expenses shall be based on evidence of prior or anticipated expenses and entered on the Worksheet in the deviation section.
These expenses may include special education expenses. Parties may also agree that these expenses be paid directly by one party (as opposed to being added to the monthly child support obligation).
Tennessee courts have ruled that it is not unjust or inappropriate to require the entire amount of private school tuition to be paid by one parent whose yearly income was substantially greater than the other parent's, and the other parent was dependent upon child support and alimony to meet the remainder of their needs and those of the children. However, in some instances, imposing the entirety of private school tuition on one parent may constitute an unjust or inappropriate application of the child support guidelines that would warrant downward deviation. Where the non-custodial parent has substantially less income than the custodial parent, downward deviation would spread the cost of private school tuition equitably among the parties.
When ordering that a party pay a child’s private school expenses as an upward deviation from the Child Support Guidelines, the court should provide written findings or justification for ordering the party to pay for the child’s extraordinary educational expenses, make findings as to the amount of the expenses, and enter an amount representing the monthly average of the expenses in the deviation section of the child support worksheet.
One party may not be required to retroactively pay a child's entire private school tuition when the other party was able to share the expense.
Can I be reimbursed for parenting time related travel expenses?
Yes. Pursuant to the Tennessee Child Support Guidelines, if parenting time-related travel expenses are substantial due to the distance between the parents, the court may order the allocation of such costs by deviation in the monthly child support obligation, taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.
Additionally, parties can always reach an agreement regarding these (or any other child-related expenses) when negotiating their Permanent Parenting Plan Order.
Can child support be increased to cover other expenses?
Yes. Another category of expenses that may increase an initial child support obligation is “special expenses.” Special expenses incurred for child rearing which can be quantified may be added to the child support obligation as a deviation from the presumptive monthly child support amount that is initially calculated. Special expenses “include, but are not limited to, summer camp, music or art lessons, travel, school-sponsored extra-curricular activities, such as band, clubs, and athletics, and other activities intended to enhance the athletic, social or cultural development of a child, but that are not otherwise required to be used in calculating the child support order as are health insurance premiums and work-related childcare costs.” One such example of special expenses found in Tennessee case law is additional expenses pertaining to a child's cheerleading activities.
Can I get credit for other children not subject to the current litigation living inside and/or outside of your home?
Maybe. You get credit for other children whom you are legally required to provide support, whether that is through a different child support order or they live with you now. You don’t get credit for step-children or any children you don’t have a legal responsibility towards. The credit is different depending on the circumstances. See section 1240-02-04-.04 (5) et. seq. of the Tennessee Child Support Guidelines for more information.
What if I don't know or don't have evidence of the income of the other parent?
If there is no reliable evidence of income due to a parenting failing to participate in a child support proceeding or when a parent has failed to supply adequate and reliable financial information, the court may impute income on the parent. See Tenn. Comp. R. & Regs. 1240-02-04-.04 (3)(a)2. Pursuant to the Child Support Guidelines, "gross income for the current and prior years shall be determined by imputing annual gross income of forty-three thousand seven hundred sixty-one dollars ($43,761) for male parents and thirty-five thousand nine hundred thirty-six dollars ($35,936) for female parents. These figures represent the full time, year-round workers’ median gross income, for the Tennessee population only, from the American Community Survey of 2016 from the U.S. Census Bureau."
Internal Citations Omitted.
The Tennessee Child Support Guidelines - Tenn. Comp. R. & Regs. 1240-02-04 et seq.
T.C.A. § 36-5-101 et seq.
T.C.A. § 36-6-106
Bean v. Bean, No. M2022-00394-COA-R3-CV;
Henry v. McCormack, No. M2019-02065-COA-R3-JV ;
Reeder v. Reeder, 375 S.W.3d 268;
Beyer v. Beyer, 428 S.W.3d 59;
Barnett v. Barnett, 27 S.W.3d 904;
Richardson v. Spanos, 189 S.W.3d 720;
Schwager v. Messer, 2019 Tenn. App. LEXIS 477;
Steakin v. Steakin, No. M2017-00115-COA-R3-CV.
Last Updated 1/26/2023.