It is much more common today for couples to have children without getting married. Unfortunately, these relationships sometimes come to an end and custody must be decided. Custody law in Tennessee is the same whether parents are married or unmarried. However, for custody disputes between unmarried parents, courts give preference to the mothers.
In Tennessee, an unmarried mother is automatically considered the custodian of the child. If unmarried parents are not together, the mother does not need to seek a custody order. As long as the mother has the child's birth certificate and can show proof of her identification as being listed the mother on the birth certificate, she can claim custody.
Because a mother is considered the automatic custodian in Tennessee, an unmarried father can only obtain custody if he seeks court intervention. The father must show that the mother is unfit. If he succeeds, the court will review the circumstances of the case and grant custody to the parent that would be in the best interests of the child.
Best Interests of the Child
Tennessee Code 36-6-106 outlines the procedure for a custody determination, whether during a divorce proceeding or just a custody proceeding. Judges examine several factors to determine an arrangement that will be in the best interests of the child. They include: (1) the relationship between each parent and the child; (2) each parent's ability to provide a stable environment; (3) each parent's ability to provide for the child's needs, like adequate housing, clothing, food, and medical care; (4) the child's preference, if the child is age 12 or older; and (5) any allegations of domestic violence or child abuse.
Unmarried Fathers' Rights When the Mother Dies
The United States Constitution protects unmarried fathers' rights. Before 1972, when a child's mother died and the parents were not married, the child became a ward of the state even if the father was raising the child with the mother prior to her death. However, in 1972 the Supreme Court, in Stanley v. Illinois, held that the unwed father had the right to seek custody of his child. An unwed father now has a right to prove that he is fit to raise his child. If he succeeds, the state cannot take custody over him.
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