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Tennessee Trial Lawyers Association

Articles Posted in Child Custody

As 2017 winds down, people are looking back at their past year. Was it a good one? What could improve next year?

For parents sharing joint custody, now is a good time to reflect on how the past year went for them and their children to ask the same questions: What is working? What isn’t? Was time divided equitably?

Before making New Year’s resolutions, start to think about how you can resolve to have a smooth custody plan in 2017.

As a rule, the Courts have historically encouraged the visitation rights of parents, despite separation of the parties, believing that a relationship with both mother and father is essential to the upbringing of a child. However, what if a parent is incarcerated? Do the Courts still encourage visitation if a parent is imprisoned? Can visiting a parent in jail/prison be detrimental to the mental and emotional development of a child?

Under Tennessee law, the fundamental right to care and to have custody of a child is one of the oldest judicially recognized interests protected under federal and state law. Termination of a parent’s rights is considered to be “a grave and final decision, irrevocably altering the lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). It is for this reason that Courts continue to allow an imprisoned parent to be involved in his or her child’s life, despite the crime(s) he or she has committed. However, can allowing such visitation be mentally and emotionally damaging to a child?

A recent study, funded by the National Institute of Justice, indicated that approximately sixty-five (65) percent of children reacted negatively to visiting an incarcerated parent. Among those that reacted negatively, the parental caregivers characterized the children’s reactions as largely emotional, often involving expressions of fear, anger and anxiety, resulting in excessive outbursts, crying and symptomatic depression. Alternatively, only thirty-five (35) percent of children reacted positively to visiting an incarcerated parent. In some cases, the children exhibited heightened spirits and improved good behavior during visits, often with a promise of future visitations as an enticement for this good behavior.

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