In the normal course of events, custody of a minor child is decided through a lengthy court process. Sometimes, however, there is not time to go through a lengthy court process because the child is in danger, or an emergency situation exists. In that case, you may need to file for emergency custody or guardianship of a child. A Murfreesboro family law lawyer at Bennett, Michael & Hornsby explains the process for obtaining emergency custody or guardianship of a minor child in Tennessee.
Custody vs. Guardianship
Both terms – “custody” and “guardianship” – are used when referring to the rights and responsibilities of an adult to a minor child. Historically, the term custody applied only to a parent’s right to physically live with a child and/or to make important legal decisions relating to the child. On the other hand, any qualified adult could be the legal guardian of a minor child.
Today, Tennessee law no longer officially uses the term “custody” when referring to a parent’s rights and responsibilities of a child during or after a divorce; however, for purposes of explaining emergency orders we will continue to use that term. Emergency custody, therefore, may be sought by a parent while a divorce is pending or anytime after the divorce has been finalized. Emergency guardianship is something that a non-parent (such as a grandparent, aunt/uncle. Or close family friend) may seek if they believe a child is in immediate danger. Similarly, a parent may voluntarily grant someone temporary guardianship of a minor child if hardship prevents the parent from caring for the child. You may also be granted guardianship over a minor child without the parent’s consent; however, that requires petitioning the appropriate court and convincing a judge that guardianship is in the child’s best interest.
What Does It Mean to Be Granted Emergency Custody?
If you and your spouse decide to divorce and you have a minor child, the court will typically enter temporary orders relating to the living situation of the child and parenting time with the child at a pre-trial hearing at which both parents are present. That hearing, however, may not be scheduled for weeks – even months – after the divorce is filed. If you genuinely believe that an emergency exists requiring an immediate order from the court granting you temporary custody of the child, you can petition the court for such an order.
If you petition for emergency custody, you are asking the court to grant an “ex parte” request. “Ex parte” means that the judge makes a decision without the opposing party present. Our judicial system frowns on such orders and will only grant one when compelled to do so by the evidence and/or testimony presented at the hearing.
Seeking emergency custody of your minor child will require you to show that granting such a request is necessary to protect the best interest of the child. Examples of situations that a court might consider sufficient cause to grant emergency custody include, but are not limited to, the following:
- The other parent has willfully abandoned the child.
- The other parent has been physically, sexually, or emotionally abusive to the child.
- The other parent was convicted of a sexual offense.
- The other parent has an alcohol or drug addiction.
- The other parent has been convicted of a criminal offense that prevents him/her from caring for the child.
If a judge does grant you emergency custody of your child through an ex parte order, that order will only remain in effect for 15 days. Within that time frame the court will schedule a hearing to allow both sides to present evidence and testimony. At that hearing the court may keep the temporary order in place or rescind the order.
Contact a Murfreesboro Family Law Lawyer
If you have additional questions about obtaining emergency custody or guardianship of a minor child in Tennessee, it is important that you consult with an experienced Murfreesboro family law lawyer to discuss your legal options. Contact the team at Bennett, Michael & Hornsby as soon as possible by calling 615-898-1560 to schedule your free appointment.