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Tennessee — TCA § 36-6-101 + § 36-6-106 + § 36-6-404 — Best interests + parenting plan (verbatim, post-2018 amendments)

Jurisdiction: United States — Tennessee · Citation: Tenn. Code Ann. §§ 36-6-101, 36-6-106, 36-6-404 · Authoritative source: LexisNexis — Tennessee Code · See also Tennessee Code Online — Title 36

The Tennessee Parenting Plan Act framework with operational PA-recognition. Tennessee's Parenting Plan Act (Permanent Parenting Plan Act, 1997, codified at Title 36, Chapter 6, Part 4) was substantially amended in 2018 to expressly address parental alienation patterns. The framework establishes: - TCA § 36-6-101 — general parental rights and obligations - TCA § 36-6-106 — best-interest factor framework (the operative 15-factor test) - TCA § 36-6-404 — permanent parenting plan requirements

The provisions parallel other state-level US frameworks: - California Family Code §§ 3011 + 3020 + 3040 - Florida Statute § 61.13 time-sharing factors - Kansas KSA § 23-3203 custody factors - Washington RCW § 26.09.187 parenting plan criteria - Louisiana CC art. 134 welfare-checklist — to be added

Tennessee is doctrinally distinctive among US states because the 2018 amendments to TCA § 36-6-106 expressly enumerated parental alienation as a welfare-protective factor (factor (10)) — making Tennessee one of only six US states with express statutory PA-recognition language alongside Louisiana, Texas (informal practice), New Jersey, Florida (functional via § 61.13), and Arizona.

Verbatim text (current consolidated, post-2018 amendments)

TCA § 36-6-106 — Best interests of the child

(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. In taking into account the child's best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child's need for stability and all other relevant factors. The court shall consider all relevant factors, including the following, where applicable:

(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 preferences 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.

TCA § 36-6-404 — Permanent parenting plan

(a) Any final decree or decree of modification in an action for absolute divorce, legal separation, annulment, or separate maintenance involving a minor child shall incorporate a permanent parenting plan. A permanent parenting plan shall:

(1) Provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for further modifications to the permanent parenting plan;

(2) Establish the authority and responsibilities of each parent with respect to the child, consistent with the criteria in this part;

(3) Minimize the child's exposure to harmful parental conflict;

(4) Provide for a process for dispute resolution, before court action, unless precluded or limited by § 36-6-406. The process may include counseling, mediation, or arbitration by a specified individual or agency, or court action. The court will not order a dispute resolution process, except court action, when it finds that any limiting factor under § 36-6-406 applies. In designing the process the court shall consider all relevant factors, including:

(A) Differences between the parents that would substantially inhibit their effective participation in any designated process;

(B) The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were knowingly and voluntarily entered into;

(C) Differences in the parents' financial circumstances that may affect their ability to participate fully in a given dispute resolution process; and

(D) Such other factors as the court considers appropriate;

(5) Allocate decision-making authority to one (1) or both parents regarding the child's education, health care, extracurricular activities, and religious upbringing. The parents may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in this part. Regardless of the allocation of decision making in the parenting plan, the parties may agree that either parent may make emergency decisions affecting the health or safety of the child;

(6) Provide for the resolution of future disputes between the parents;

(7) Provide a residential schedule for the child;

(8) Specify the day-to-day responsibilities and the methods of resolving disputes; and

(9) Identify the parent who will pay child support and require that parent to comply with the child support obligation as ordered by the court.

Why this matters for PA

  • The maximum-participation principle (§ 36-6-106(a) opening clause). The court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in this subsection (a), the location of the residences of the parents, the child's need for stability and all other relevant factors. This is the Tennessee maximum participation principle — operationally the most explicit US state-level expression of the structural commitment to both-parent participation. In PA-pattern cases this provides structural foundation for resisting alienating-parent applications that minimize the targeted parent's role.
  • Factor (2) — the most operationally explicit US friendly-parent factor. 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. The factor 2 friendly-parent codification is doctrinally distinctive — Tennessee provides one of the most operationally rigorous US state-level express friendly-parent factors. The factor includes:
  • Willingness and ability to facilitate and encourage a close and continuing parent-child relationship
  • Likelihood … to honor and facilitate court ordered parenting arrangements and rights
  • History of either parent … denying parenting time … in violation of a court order
  • The "history of denying parenting time in violation of a court order" express codification is doctrinally unique — providing structural anchor for treating PA-pattern court-order breaches as engaging the welfare-checklist directly.
  • Factor (3) — court-ordered parent education seminar refusal. 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. This is doctrinally distinctive — Tennessee expressly authorizes the court to treat seminar-refusal as bad-faith. In PA-pattern cases this provides structural pathway for treating alienating-parent refusal to engage with court-ordered interventions as engaging the welfare framework.
  • Factor (8) — mental health examination authority + Rule 35. 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. This is operationally important — Tennessee expressly authorizes psychological examination of either parent. In PA-pattern cases this provides structural pathway for forensic-clinical evaluation of the alienating parent's psychological functioning.
  • Factor (11) — emotional abuse to child OR to other parent. Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The extension to other parent is doctrinally important — Tennessee expressly recognizes that emotional abuse of one parent (which sustained alienating conduct can constitute) engages the welfare-checklist. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings — providing structural pathway for parallel juvenile-court intervention.
  • Factor (13) — child preference with age-12 threshold + greater weight for older children. The reasonable preference of the child if twelve (12) years of age or older. The age-12 threshold parallels Spain's CC art. 156(2) but Tennessee's reasonable preference qualifier is doctrinally distinctive — the preference must be reasonable, which permits the court to disregard preferences that are clearly alienation-induced. The greater weight for older children does not foreclose the court's autonomy-of-formation assessment.
  • § 36-6-404(a)(3) — minimize child's exposure to harmful parental conflict. Minimize the child's exposure to harmful parental conflict. This is the Tennessee structural anti-PA codification — the parenting plan must minimize harmful conflict exposure. In PA-pattern cases this provides structural anchor for ordering interventions specifically designed to reduce alienating-parent conflict-exposure of the child.
  • § 36-6-404(a)(4) — dispute resolution process before court action. Mandatory dispute-resolution process — typically counseling, mediation, or arbitration — before court action. The framework includes specific exclusions under § 36-6-406 (DV findings + other limiting factors). In PA-pattern cases this provides structural pathway for ordering targeted-intervention pre-litigation processes.
  • § 36-6-404(a)(5) — categorical decision-making allocation. Decision-making authority on education, health care, extracurricular activities, and religious upbringing may be allocated to one or both parents categorically. This is the Tennessee structural parallel to:
  • Canadian Bill C-78 decision-making responsibility allocation
  • Spanish CC art. 156(2) categorical attribution
  • German BGB § 1671 partial-transfer framework
  • In PA-pattern cases this provides structural flexibility for tailored PA-protective orders.
  • § 36-6-404(a)(9) — child support compliance requirement. The parenting plan shall require the support-obligated parent to comply. This is operationally important — non-compliance with child support obligations can be considered in modification proceedings and engages the welfare-checklist factor (2) friendly-parent analysis.

Procedural application

  • The competent court is the Tennessee Circuit Court or Chancery Court (depending on county) for divorce-based parenting plans; the Juvenile Court for child-protection cases under § 36-6-106(a)(11)
  • Mandatory parenting plan under § 36-6-404 for all divorces involving minor children
  • Parent education seminar — mandatory under Tennessee Supreme Court Rule 32 for divorcing parents with minor children
  • Court-ordered mediation under § 36-6-404(a)(4) (with § 36-6-406 limiting factors)
  • The child is heard under § 36-6-106(a)(13) — capacity-based with age-12 threshold
  • Appellate review to the Tennessee Court of Appeals + cassation to the Tennessee Supreme Court

Use in alienating-conduct cases

  • The Tennessee Supreme Court has applied the friendly-parent factor in PA-pattern cases — see Eldridge v Eldridge, 42 S.W.3d 82 (Tenn. 2001); Boyer v Heimermann, 238 S.W.3d 249 (Tenn. Ct. App. 2007)
  • The Tennessee Court of Appeals has developed the court-order violation analytical framework under factor (2) — see In re Jaiden D., No. M2016-01023-COA-R3-PT (Tenn. Ct. App. 2017)
  • Where alienating conduct is established, Tennessee courts can:
  • First-tier: order parent education seminar + mediation under § 36-6-404(a)(4)
  • Second-tier: modify residential schedule under § 36-6-404(a)(7)
  • Third-tier: reallocate decision-making authority under § 36-6-404(a)(5)
  • Apex-tier: transfer primary residential custody + restrict alienating-parent contact under TCA Title 36 Chapter 6 Part 1
  • The factor (2) history of denying parenting time in violation of a court order express codification provides direct anchor for PA-pattern argument
  • The factor (11) emotional abuse extension to other parent provides bidirectional DV-protective + PA-protective pathway
  • Tennessee also operates a robust PASG (Parental Alienation Study Group) practitioner network — operational practice has developed substantially since the 2018 amendments

Cross-reference

Comparative cross-references