MY EX JUST TOOK MY CHILD WITH A COURT ORDER! WHAT DO I DO?

This Blog post is going to address the Ex Parte Order of Protection and emergency custody process as it relates to Juvenile Court in the State of Tennessee.  There are different Order of Protection processes that apply in Circuit Court and Chancery Court in the context of a divorce or post-divorce situation.  I will address those in a separate post.

I encounter the following scenario often in my practice:  Client gets served with a court order by opposing parent stating full custody of the child is being taken on an emergency basis.  Client is rightly upset and cannot understand how a court can just take full custody of their child and give it to the opposing parent without a hearing.  Client is even more upset when they learn that opposing parent has sworn to ridiculous falsehoods in their petition for emergency custody. 

If you're in this situation, I've got good news:  While your opposing parent may have won a battle in their minds, they are losing the war if they have lied under oath.  The sham victory they've won should only last 3 days if you have an attorney.  As soon as you are served with an emergency custody order call your attorney.  Your attorney will be able to use the next three days to help you gather the evidence and witnesses you will need at your duly scheduled preliminary hearing.

In order to obtain an ex parte order from the Juvenile Court granting emergency custody a party must go to the clerk, be sworn to tell the truth, give their sworn testimony, and then a magistrate or judge must determine if there is probable cause to believe there is a reason to issue an emergency custody order.   This is all hammered out in a couple of Tennessee Code sections:  § 37-1-117 (b)(1) and § 37-1-114 (a)(2).

TN. CODE. ANN. § 37-1-117 (b)

(1) When the court finds, based upon a sworn petition or sworn testimony containing specific factual allegations, that there is probable cause to believe that the conditions specified in § 37-1-114(a)(2) exist and a child is in need of the immediate protection of the court, the court may order that the child be removed from the custody of the child's parent, guardian, legal custodian, or the person who physically possesses or controls the child and be placed in the custody of a suitable person, persons, or agency, as specified in § 37-1-116(d), pending further investigation and hearing. When a child alleged to be dependent and neglected is removed from the custody of such child's parent, guardian, legal custodian, or the person who physically possesses or controls the child prior to a hearing on a petition, a preliminary hearing shall be held no later than seventy-two (72) hours after the child's removal to determine whether such child's continued removal is required under § 37-1-114. In computing the time limitation for purposes of such preliminary hearing, nonjudicial days are excluded, but in no event shall the hearing be held later than eighty-four (84) hours after the child is removed from the home.

TN. CODE. ANN. § 37-1-114 (a) A child taken into custody shall not be detained or placed in shelter care prior to the hearing on the petition unless there is probable cause to believe that the child:

(2) Is a neglected, dependent or abused child, and in either case the child's detention or shelter care is required because the child is subject to an immediate threat to the child's health or safety to the extent that delay for a hearing would be likely to result in severe or irreparable harm, or the child may abscond or be removed from the jurisdiction of the court, and in either case, there is no less drastic alternative to removal of the child from the custody of the child's parent, guardian, legal custodian or the person who physically possesses or controls the child available that would reasonably and adequately protect the child's health or safety or prevent the child's removal from the jurisdiction of the court pending a hearing.

Reading these two statutes in conjunction, we now know the definition of the probable cause the court is going to look to both initially and at the preliminary hearing: first, the court must decide if the child is a "neglected, dependent or abused child", and then whether "the child is subject to an immediate threat to the child's health or safety to the extent that delay for a hearing would be likely to result in severe or irreparable harm, or the child may abscond or be removed from the jurisdiction of the court, and in either case, there is no less drastic alternative to removal of the child from the custody of the child's parent, guardian, legal custodian or the person who physically possesses or controls the child available that would reasonably and adequately protect the child's health or safety or prevent the child's removal from the jurisdiction of the court pending a hearing."

While making up some allegations that might fool a court without evidence might be easy enough, supporting those allegations at a preliminary hearing under the scrutiny of an experienced attorney will not.

TN. CODE. ANN. § 37-1-117 (b) is where we find our 72 hour salvation.  It gives every unjustly ordered parent the peace of mind that their day in court is just 3 days away.  So start preparing now.


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