Note: This page is not intended as legal advice. It expresses general principles about Tennessee law as it stands in mid-December 2016. The laws relating to divorce and child custody change regularly in Tennessee. You should contact an attorney to get advice about your specific situation under the law as it exists at the time your situation arises. You are invited to make an appointment with Ms. Holyfield to discuss the specifics of your situation.
How can a grandparent or other relative (such as an aunt or uncle) obtain custody of a child in Tennessee?
Under Tennessee law, generally speaking, parents have a presumption of "superior parental rights." This means that in a custody dispute between a parent and a non-parent (such as a grandparent, aunt, uncle, foster parent, or other third party), the parent will win custody unless the court finds that the parent poses a risk of substantial harm to the child, the parent is an unfit parent, or the child is a "dependent and neglected child" within the meaning of Tennessee law. The non-parent bears the burden of proving one of these factors in order to remove the presumption of superior parental rights. The burden of proof is quite high and fairly difficult to meet.
The most common route for a grandparent or other relative to obtain custody of a child is by filing a petition for dependency and neglect and for custody in the juvenile court of the county where the child lives. In the petition, certain specific allegations will need to be made that cause the child to meet the definition of a dependent and neglected child under Tennessee law, and those allegations will then need to be proven in court.
In my experience, the most common situations that give rise to a finding of dependency and neglect in Shelby and Tipton Counties are parents using drugs, parents abandoning their children in the care of relatives for an extended period of time, parents dying or going to jail, educational neglect (usually via truancy), and neglect of physical needs (food, shelter, medical care) of the child. It's important to note that the court must make findings regarding the fitness of both parents before custody can be transferred to a third party. For instance, if the third party proves that the father has abandoned the child, but does not prove there is something seriously wrong with the mother's ability to parent, then the mother will probably get custody rather than the third party.
If the court determines at an evidentiary hearing that the child is dependent and neglected, then the court will proceed to conduct a best interests analysis to determine how to allocate responsibility for and visitation with the child. This is similar to the analysis a court performs in a child custody dispute between two parents. Ordinarily, the court does not determine that a parent who has neglected a child is the most fit person to have custody of that child, but it can happen in some situations. The importance of this stage of the proceedings should not be overlooked. As with all legal proceedings, concrete evidence is vital to the success of your case.
As an interesting side note, a parent who is accused of dependency and neglect will usually be appointed an attorney at no cost if he or she cannot afford one. Further, a guardian ad litem will usually be appointed to represent the best interests of the child in the proceeding. Meanwhile, the third party seeking custody will not have a court-appointed attorney, but will have to pay his or her attorney to go forward with the case. This can put the parties on unequal footing financially. Some people think this is an unintended consequence, but I happen to believe it was perfectly intentional and is the natural result of Tennessee's policy of superior parental rights.
The child is already living with me. Why do I need to go to court and get custody?
Every child deserves to have a legal custodian who is active, involved, and capable of making good decisions for the child. If you have a child who is living with you and nobody with custody is around (in a situation where the parents have abandoned the child, for instance), you are going to have difficulty making medical and educational decisions for the child.
A power of attorney or similar document is usually insufficient to give you the right to make big decisions on behalf of the child. Most school systems will not allow a person who doesn't have legal custody of a child to enroll the child in school. Most pediatricians will not allow a person who doesn't have legal custody of a child to bring the child in for visits or decide a course of treatment for a child outside the context of a true emergency. Furthermore, having custody of a child may allow you to add the child to your health insurance policy at work or seek Tenncare benefits for the child.
There is also the reality that many parents are unstable due to drug abuse or untreated mental illness, and while they may be fine with you having the child for the moment, nothing guarantees that they won't show up next week and whisk the child away to live with them in a crackhouse. If you do not have custody of the child, then you will have nothing to say about that turn of events...except prayers that the child will be all right while you scramble to seek legal custody. If you try to withhold the child from the legal custodian, you could in theory be charged with custodial interference, which is a felony in Tennessee, or the parent could even lie and accuse you of out-and-out kidnapping.
As you can see, there are many good reasons to formalize custody arrangements when you are a grandparent or other relative who has a grandchild, niece, nephew, or sibling living with you instead of a parent. If you would like to explore your options for getting custody of a child who is not your biological child, you may contact me to set up a consultation.