Lady justice and books


Fisher Wise March 16, 2019

Let's look at the emergency custody scenario again:

Client gets served with a court order by opposing parent stating full custody of the child is being taken on an emergency basis because of the sworn allegations of opposing parent contained in the attached petition for emergency custody. 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 lies in their petition for emergency custody.

As a threshhold matter, when a magistrate is presented with an emergency custody petition they must make a decision whether the allegations in the petition make out a colorable claim for emergency custody. That means the judge/magistrate must look to the statutory definition of when a child may be taken on an emergency basis as I discussed in my blog on emergency custody:

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."

Before getting to the analysis of whether there is an immediate threat to the child's health or safety that would be likely to result in severe or irreparable harm, the court must determine whether the allegations in the petition rise to the level of a colorable claim that the child "[i]s a neglected, dependent or abused child." But remember, the allegations in the petition may be trumped up, or they may be outright lies. So stay calm, call your attorney and prepare for the preliminary hearing, which is just 3 days away.

When you get to the preliminary hearing, the opposing parent is going to have to put on proof that it is more likely than not that your child is "[i]s a neglected, dependent or abused child." So what do we mean by "neglected, dependent or abused child?" Here's what the statute says:

Tenn. Code Ann. § 37-1-102(b)(1):

"Abuse" exists when a person under the age of eighteen (18) is suffering from, has sustained, or may be in immediate danger of suffering from or sustaining a wound, injury, disability or physical or mental condition caused by brutality, neglect or other actions or inactions of a parent, relative, guardian or caretaker;"

Tenn. Code Ann. § 37-1-102(b)(13):

"Dependent and neglected child" means a child:

(A) Who is without a parent, guardian or legal custodian;

(B) Whose parent, guardian or person with whom the child lives, by reason of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child;

(C) Who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;

(D) Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child;

(E) Who, because of lack of proper supervision, is found in any place the existence of which is in violation of law;

(F) Who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others;

(G) Who is suffering from abuse or neglect;

(H) Who has been in the care and control of one (1) or more agency or person not related to such child by blood or marriage for a continuous period of six (6) months or longer in the absence of a power of attorney or court order, and such person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child;

(I) Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity and whose parent, guardian or other custodian neglects or refuses to protect such child from further such activity; or


(i) Who has willfully been left in the sole financial care and sole physical care of a related caregiver for not less than eighteen (18) consecutive months by the child's parent, parents or legal custodian to the related caregiver, and the child will suffer substantial harm if removed from the continuous care of such relative;

(ii) For the purposes of this subdivision (b)(13)(J):

(a) A related caregiver shall include the child's biological, step or legal grandparent, great grandparent, sibling, aunt, uncle or any other person who is legally or biologically related to the child; and

(b) A child willfully left with a related caregiver as defined in subdivision (b)(13)(J)(ii)(a) because of the parent's military service shall not be subject to action pursuant to § 37-1-183;

So now we know what the court is going to look to when determining whether a child is dependent, neglected or abused, but remember, these decisions are made by a judge with a wealth of discretion. The importance of knowing your judge and what she thinks is important in determining whether a parent's care of a child is "improper" or whether a child has been "unlawfully kept out of school" such that she might find dependency and neglect cannot be overstated. Consult with your attorney as soon as possible so that you can develop a strategy for success.Call today to schedule a consultation. The Law Offices of Fisher Wise proudly serves Marion County, Sequatchie County, and Rhea County, Tennesse.