Lori R. Holyfield Attorney at Law

An Advocate Through Life's Transitions

"Fair" Is a Four-Letter Word in Child Custody Cases

In custody cases, I often hear some variation of, "my ex wants such-and-such included in our parenting plan, and that's not FAIR." 

Sometimes it's a mother who is angry that she has done all the hard work in the early years and now dad wants to waltz in and be involved now that the kid is potty-trained and verbal.  Sometimes it's a father who has serious substance abuse issues and doesn't understand why his parenting time has to be restricted until everyone is sure that he is well.  Sometimes it's someone who won't accept anything less than equal parenting time even though one parent has been substantially more involved in raising the child, and sometimes it's someone who won't budge from every other weekend because "it's not stable for the child."  Sometimes it's someone who doesn't want to share decisionmaking authority.  There is plenty of "not fair" to go around.

Here's what Tennessee parents need to understand.  Child custody is not about what's "fair" to the parents.  The court really does not care too much about that (although it does care about maximizing each parent's participation in the child's life). 

The court cares most of all about what is "fair" to the children, or in more specific words, what is in their best interests.  (If you're curious, you can view the Tennessee best interest custody factors at this link.)  The children didn't ask to be born, and they didn't ask for their parents to break up.  If the adults are disappointed with the outcome, they will deal with it.  The children are the ones whose needs must be respected because they are in a situation that is not of their own making, and they lack the power to do anything about it.

Too frequently, I hear that children don't truly "need" to see the other parent very much.  That's just not true.  Every study I know of that has ever been done on the issue shows that children who have a real relationship with both parents have better outcomes: they perform better in school; they are less likely to be incarcerated in the future; they are less likely to have teen pregnancies; they are less likely to be physically and sexually abused; and their rates of drug use, obesity, and poverty are lower.  Studies also show that parents who are awarded significant time with a child by the court are less likely to give up on visitation and disappear altogether.  Although you may wish your ex would disappear altogether, in the majority of cases, that is not what is best for your child.

I have often wondered where this idea that things have to be "fair" or "equal" comes from.  In a divorce, the assets and liabilities must be divided fairly and equitably, which often means close to equally; but children are not assets to be equitably divided.  In our legal system, we have the concept of "justice," which has a connotation of fairness to it, but again, justice must focus on the most vulnerable people least capable of taking care of themselves: the children.

It's often the case that what a parent wants aligns with what is best for the child, and that's wonderful when it happens.  I encourage you to fight, but not for what's "fair to you" or what you "deserve."  Instead, fight for what is in your child's best interests. What that is will vary from family to family, but the underlying principle of protecting the child is what matters. Make that your goal.  Align your interests with those of your child, and throw "fair" out the window. 

Fair has four letters.  Maybe that's not a coincidence.


Lori R. Holyfield focuses her practice in divorce and family law and serves Shelby, Tipton, and Fayette Counties in southwest Tennessee.

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