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Tennessee Trial Lawyers Association

Emergency Child Custody Issues in Tennessee

Cole Law Group Blog

Military Law Attorney Paul Tennison

The main concern of most parents in Tennessee is the welfare of their child.  However, occasionally a single parent or a family will find themselves in the unfortunate and often heart-wrenching situation of dealing with the legal issue of emergency child custody. Emergency custody matters may arise due to any of the following:  the commitment of a serious offense by a minor child, the death of one or both parents, the incarceration of one or both parents, or the severe abuse or neglect of a minor child. In such cases, the Tennessee Department of Children’s Services (“DCS”) is mandated to investigate. The DCS mission is to “provide high quality prevention and support services to children and families that promote safety, permanency, and well-being.”¹

Tennessee custody laws are statutory. Thus, reading the section of Tennessee law that governs Juvenile Courts and Proceedings affords the reader a good idea of what law applies in specific emergency custody situations.²

How Can One Complaint Result in Emergency Custody Litigation?

Emergency custody litigation may commence due to a complaint made by a concerned individual to law enforcement or the Child Abuse Hotline. It can also begin with someone  filing a petition in the Juvenile Court of the county in which the child resides. Petitions for dependency, neglect, or severe abuse will often request the Juvenile Court to transfer temporary legal custody.³ In my experience as a child custody lawyer, petitions are often based on exposure of the child to drug use, mental incompetency, negligence, abuse, or the criminal activity of a parent/custodian.

In some custody litigation cases, the child will remain with the parent(s) or other legal guardian until a hearing on the petition can occur. However, if a child is at immediate risk for mental or physical harm, a judge may decide to place that child in physical state custody. A child could also be taken into detention or placed in shelter care prior to a hearing when there is probable cause that the child will abscond or be removed from the jurisdiction of the court. In either case, there would be no other alternative  than to remove the child from the custody of his or her parent(s), guardian or legal custodian and be placed in shelter care prior to a hearing on the petition.4

Who Will Care For My Child in State Custody?

In cases where the parent or other legal guardian is divested of custody until a hearing on the petition occurs, DCS will often work with the family to try to locate and vet potential temporary custodians of the child. DCS must determine that the temporary custodians are fit and suitable to have custody of the child. Temporary custodians must pass a DCS background check and drug screen in order to be approved. DCS often tries to first place a child with a family member or family friend before placing a child with an unrelated foster parent.

What Should I Expect in an Emergency Custody Hearing?

During each court hearing in Juvenile Court, the presiding Judge has authority pursuant to Tennessee law to issue orders regarding custody. This includes primary legal custody and visitation by parents and other relatives either in person, via phone, Facetime or  similar technology. Participants may be given a chance to testify before the Judge as to why the parent/custodian should be granted custody or visitation.

Participants at a hearing should expect the DCS caseworker to give a report to the court as to how the child is doing in his/her temporary custody and the results of parent/custodian actions with DCS. Parental interaction with DCS may include drug testing, educational programs in which the parent/custodian must participate, meetings with the caseworker, and anything else that is communicated to the parent/custodian by DCS. Pursuant to Tennessee law, the central determination of the Judge should always be the best interest of the child. A list of the factors that are considered by the court to be in the best interest of the child is found at Tenn. Code Ann. § 36-6-106.

There Can Be a Happy Ending

Experienced child custody attorneys understand emergency child custody situations in Tennessee. Their knowledge and expertise can help guide clients who are unfamiliar with the process through a very stressful period. No one wants to lose custody of their child or see a friend or family member go through such a struggle. In some cases, parents or custodians who lose custody initially are able to work with DCS and the Juvenile Court to complete specific actions that demonstrate the child is no longer at risk in their custody. When successful, the parent or custodian will regain custody of their child. The goal of the Juvenile Court system is for the parents/legal custodians to have  the resources necessary to provide safe care for the child and to reunite the family.

If you are dealing with an Emergency Child Custody matter in Tennessee, you should have an experienced child custody lawyer by your side. Cole Law Group’s Family Law Attorneys in Brentwood are prepared to help.  Call 615-490-6020 for a consultation as soon as possible.

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¹ https://www.tn.gov/dcs/about-us/mission.html

² Tenn. Code Ann. § 37-1-102 is a good place to start.

³ Pursuant to Tenn. Code Ann. § 37-1-129 to -130.

4Tenn. Code Ann. § 37-1-114.

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