Legal vs. Physical Custody in Tennessee

Almost everyone has at least heard the word “custody,” but unless you or a loved one have gone through a divorce, you may not know exactly how that breaks down, in real time. 

Custody refers to a parent’s legal relationship over their child. It encompasses all of the rights, responsibilities, and duties associated with the role, and breaks down into two main categories: legal and physical.

In this article, we’ll shed light onto the murky topic of legal vs. physical custody in Tennessee, and help you figure out how each might be handled in your situation. 


Custody: An Overview

To understand the differences between legal and physical custody, you first need to understand what custody actually is. 

In the legal arena, custody refers to all of the overarching rights and responsibilities a parent has to care for, protect, raise, and influence their child. More specifically, it encompasses their right to have physical time with their child, and to make decisions on their behalf.


Not Just for Divorcing Parents

Custody is not something that is limited to divorcing parents. Indeed, these rights are also relevant to unmarried parents, guardians, adopted parents, and essentially anyone else who might have a protective role or responsibility to care for another—including an incapacitated adult.

That being said, custody is most commonly associated with divorce, particularly families with minor children. This is because—while custodial powers do transcend a breakup—the court can no longer assume that both parents want the same thing for their child. 

Hence, when parents break up, custody must be divided, in order to ensure the rights of both are being protected, and to hold each legally accountable for the continued care of their child, post-divorce.


Legal vs. Physical Custody

As we’ve mentioned, custody is not a singular right or power. Instead, it encompasses many different authorities and rights, all of which are grouped into one of two major categories: 

  1. Legal Custody—the rights of a parent to make decisions on behalf of their child, and to determine how they will be raised. 
  2. Physical Custody—a parent’s right to have physical contact with their child, including living arrangements, visitation, along with the responsibility of caring for their physical needs. 

During divorce, your judge will address legal and physical custody, separately, and assign custodial powers to either one parent, alone (sole custody), or to both, in shared authority (joint custody). 

Joint vs. sole custody decisions are made—not according to the parents’ respective wishes—but according to the best interest of the child. This means that the outcome you want might not necessarily be the one you end up with. 

Instead, your judge will choose the option that will benefit your child’s long-term happiness and welfare the best.

Here’s a closer look.


Legal Custody

As we mentioned above, legal custody refers to a parent’s right to make decisions on behalf of their child, and to influence how they will be raised. 

Along with basic, daily choices, legal custody also allows parents to influence a lot of really important areas in their child’s life, including: 

  • What kinds of medical treatment, surgeries, and mental health care their child receives;  
  • Whether or not their child can be vaccinated;
  • Where their child will attend school; 
  • What kinds of extracurricular activities they can participate in; and, 
  • What religious and cultural practices their child is exposed to. 

Most of the time, when parents ask us if they can get sole custody of their child, what they really want to know is if they can get sole legal custody. 

Unfortunately for these parents, however, it’s rare for Tennessee courts to grant one side sole legal custody, and here’s why. 


Sole Legal Custody 

A parent who is granted sole legal custody has full jurisdiction over all the important decisions in their child’s life. 

While this might sound great for the parent who gets custody, it’s a pretty big kick in the pants for the parent on the other side, since it essentially negates any authority they have to dictate how their child will be raised. 

Tennessee courts are loath to strip that kind of power from a parent, which is why—barring any unusual circumstances (such as abuse or domestic violence)—you will most likely end up sharing legal custody equally with your child’s other parent. 


Physical Custody

On the other end of the custody spectrum, is physical custody, which encompasses a parent’s right to have physical facetime with their child, as well as the duty to take care of their physical needs. 

Unlike legal custody—which is relatively simple to divide equally between parents—giving each spouse the same amount of physical time is a lot more difficult.  

Due to work, school schedules, extracurricular activities, and more, it can be nearly impossible for the court to divide a child’s time precisely down the middle—even when both parents are equally qualified.

Because of this, Tennessee courts will usually assign one parent to be the child’s primary residence parent (PRR), while awarding the other parent ample parenting time in the form of a visitation schedule. This decision is made by analyzing a number of different factors, to see which arrangement is better suited to meeting the child’s needs.


Factors that Influence PRR

In Tennessee, some of the factors the court can consider when assigning primary residence, are: 

  • Each parent’s relationship with their child; 
  • Each parent’s ability to meet their child’s physical needs; 
  • Each parent’s past caregiving history; 
  • The importance of continuity in the child’s life; 
  • The importance of social and community relationships in the child’s life; 
  • The stability of each parent’s respective home; 
  • The mental and physical health of each parent; 
  • The behavior or effect of other, non-family members living in each house; and, 
  • Any evidence of abuse, neglect, drug use, domestic violence, or other criminal behavior. 

This list is not exhaustive, and Tennessee judges are free to consider any factors they think might be relevant.


Does Physical Custody Affect Child Support?

Yes. In Tennessee, child support payments are almost always the responsibility of the non-custodial parent. 

This might seem like non-custodial parents are getting the raw end of the deal. However, kids don’t come cheap, and without child support, custodial parents would inadvertently end up shouldering most of the daily costs of child rearing. This would be a significant burden for custodial parents, and allow non-custodial parents to shirk the duty of care they have for their child. 

Hence, in order to even the scales, Tennessee courts will almost always require non-custodial parents to pay child support—how much will largely depend on the division of time in your parenting plan. 


Child Custody Attorney in Tennessee

In reality, there shouldn’t be a “versus” between legal vs. physical custody. These powers aren’t fighting one another—they complete one other, with each serving an important role in helping parents to maintain an influential, loving relationship with their child, post-divorce.

If you have more questions about legal vs. physical custody in Tennessee, and how each might look in your situation, we want to hear from you. Call the Byrd Law team at (423) 304-6827, or contact us online, and together, we can make sure the best interests of your child are met. 

Author Bio

Sam Byrd is the owner and managing attorney at The Law Office of Sam Byrd. With hands-on experience in divorce, family law, criminal law, and DUI/DWI cases, Sam has been serving clients in Tennessee since 2012. He graduated with a J.D. from the University of Memphis Cecil C. Humphreys School of Law in 2012 and holds a B.S. in Legal Studies from the University of Tennessee – Chattanooga, where he graduated summa cum laude in 2009.

He began his legal career as a paralegal, working under his father’s guidance. Prior to that, Sam served in the United States Marine Corps as a member of the 2/7 Weapons Company stationed at 29 Palms, California.

Sam has received several accolades for his work, including being recognized as a Rising Star in Divorce & Family Law by Tennessee SuperLawyers in 2020, 2019, and 2018. He is also a member of The National Trial Lawyers’ Top 40 under 40, an exclusive professional organization for top trial lawyers under the age of 40. Sam’s commitment to continuous learning and improvement is demonstrated by his certifications in Trial Skills from the National College of DUI Defense in 2019 and 2018.

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