Tennessee Child Custody Law Favoring Parents Who Can Best Prepare Child for “a Life of Service”

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) … The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of ยง 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s. And a recent case, Wood v. Wood (Tenn. Ct. App. May 16, 2013) (nonprecedential) (emphasis added), suggests that this isn’t just an empty phrase that would be equally satisfied by all reasonable educational plans:

Mother argues that this factor favors her because she values education more than Father as she has a college degree whereas Father was suspended from college for failing grades. In addition, Mother argues that she cares more about the child’s education because she enrolled the child in a college preparatory school. While we agree that Mother appears to care substantially about the child’s education, even Mother agreed that the proposed school in Union City is a good school for the child to attend. In addition, while Father’s own college endeavors proved unsuccessful, nothing suggests that Father does not value education for the child. Further, beyond school, Father testifies that he exposes the child to a church environment, which may help the child prepare for a life of service. Accordingly, we conclude that this factor favors neither parent.

Yet preferring more religiously observant parents over less observant ones, whether because “a church environment” promotes “a life of service” or for some other reason, strikes me as a violation of the First Amendment; see also Part I.D of my NYU Law Review article on the First Amendment and child custody.

The origin of the phrase in Tennessee law seems to be Bevins v. Bevins (Tenn. Ct. App. 1964); the Tennessee statute seems to, among other things, codify part of the Bevins court’s analysis. Here’s the relevant passage:

The real matter to be considered is what is the best thing to do with these children that they may be left in a home where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to the physical welfare of the child, but to its emotional and moral welfare, and where it can have the instructions from those who have control over it to inspire it to activities so as to develop a personality prepared for a life of service, and to successfully compete in the society which the child faces when an adult. Stated in a few words, it surely could be said that if there is a supreme rule to follow, that the consideration to be given determinative significance is in “respect to its temporal, and its mental and moral welfare” of the child as such, and the personality that it is expected to be when it becomes an adult.

For an earlier reference to the term in another state, see In re Hock, 88 N.E.2d 597 (Ohio. Ct. App. 1947): “It is difficult to conceive of any justiciable subject upon which courts may be required to pass which assumes the grave importance incident to the determination of what shall be the environment of a human life, especially when such determination is made shortly after such life has come into existence. The decree of disposition may result in a happy life of service, or it may be permanently calamitous in its effect upon all concerned.”

If anyone can elaborate further on whether “life of service” has any meaning other than the one I gathered from some quick search — a life of service to the community (or to some other higher cause, such as God) — I’d love to hear it.

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