6 Steps to Getting Child Custody in a Tennessee Court
In Tennessee, the road to getting a child custody order depends on your case type.
Divorce cases are for parents who want to end their marriage. Separation is for married parents who aren't ready to divorce but want to live apart and divide marital property. Custody-only cases are for parents who aren't married to each other.
Cases that only involve custody issues have fewer requirements and, thus, are typically shorter than divorces and separations.
You'll also see some differences in the process if there are any special circumstances.
If you file a settlement agreement at any point during your case, the process jumps to Step 6.
Step 1: Preparation
Do your research, and consider your options. Check out various parenting time schedules to figure out what you want to request. Then, get advice on how to proceed from an attorney or legal aid office. If you're representing yourself, get familiar with Tennessee's child custody laws (starting on page 238).
Some cases: Paternity establishment
If your child does not have a legal father, you need to establish paternity before you can proceed to the next step.
Step 2: Filing your case
Where you open your case varies by case and county.
To divorce or separate in Tennessee, one spouse must have lived in the state for the last six months. You'll open your case in the county where your spouse lives or the county where you lived together before you separated. If your spouse is incarcerated or not a resident, you can file in your own county.
Usually, married parents give their paperwork to the court clerk in the circuit or chancery court, and the two courts share jurisdiction over the case. In Shelby County, you give your forms to the divorce referee who assigns you to a court.
If you're not married, file your case with the juvenile court in the county where your child lives.
After filing, the other parent must receive a summons and copies of the paperwork you gave to the court through a process called service. A sheriff or process server must deliver the documents. You cannot do it yourself.
Some cases: Get temporary orders
You might request a temporary order if the other parent presents a threat to your child's well-being or if you want to formally lay out how to handle custody during your case.
Emergency custody order
If your child is in danger of being harmed or removed from the state, you can ask for temporary emergency custody through a Petition for Order of Protection. (Check the box for "temporary custody" on page 4.)
Shortly after filing the petition, you'll appear in court for a hearing. In some cases, the hearing is ex parte meaning the other parent does not attend. You'll receive an emergency custody order if the judge believes it's necessary.
Within 15 days of an order being issued ex parte, a review hearing is held so both parents can present evidence and testimony. Based on this, the judge allows the emergency order to stand, modifies it or terminates it.
Temporary custody order
A temporary order (also called a pendente lite order) specifies how parents are to handle custody, child support and other matters while their case is in progress. Although a temporary order isn't mandatory, parents are advised to request one to make sure their child's needs are met.
If you and the other parent agree how to handle matters while the case is in progress, you can ask the judge to turn it into a temporary order so the court can enforce your agreement.
If you can't agree, either of you can request that the judge decide on a temporary order at a hearing, where you both present your cases. Each of you must submit a proposed temporary parenting plan and provide a verified statement of income prior to the hearing.
In circuit and chancery court, the parent who is not, for now, named the primary residential parent is responsible for paying temporary child support in an amount determined by the judge. Parents cannot get a temporary child support order through juvenile court as support is handled separately from custody there.
Some cases: Docket call
About two to three months after filing a petition for custody in juvenile court, parents or their lawyers appear before a judge or magistrate for a docket call (unless the case is already settled or has an emergency order in place). Here, the court official checks in on the case.
If service is complete but the other parent hasn't responded, the court may enter a default judgment in favor of the parent who's present or delay proceedings to give the other parent more time.
If parents have an agreement, the judge or magistrate can review their parenting plan or write terms of the agreement into a plan for them. Then, the parents file the settlement and jump to Step 6.
If there's no agreement in place, the official can send the case to mediation, issue temporary orders, allow discovery to begin or schedule a trial.
Some cases: Mediation
In mediation, parents meet with a neutral third party who leads confidential discussions on how to resolve disputes in their case. Generally, divorcing parents who have yet to reach an agreement are required to attend, unless domestic violence is an issue. Parents can choose to go if the court doesn't order them to.
If parents reach an agreement, the mediator or the parents' lawyers draft the settlement documents for filing with the court. Parents with a full agreement then jump to Step 6. Parents who agree on only certain items get a temporary custody order or nothing at all, and may be referred to a settlement conference to try to resolve the remaining issues.
Step 3: Discovery
Discovery is the exchange of information between parties to help them prepare evidence and arguments. It can last weeks or, in especially contentious cases, months, and it often overlaps with other steps.
Information you might have to turn over includes texts, emails, financial records and medical records. You'll also exchange pleadings (e.g., claims, accusations and legal defenses).
Depositions, where parents and their witnesses answer questions under oath outside of court, are also part of discovery.
Custody evaluations take place during this time if ordered by the court or if a parent hires an evaluator on their own. Parents can use the evaluator's report as evidence at trial.
Parents or their lawyers may opt to start discovery before mediation if they want more information before considering a settlement. Discovery continues afterward if parents don't reach an agreement.
Step 4: Conferences
The judge can schedule conferences throughout the court process on their own or upon a parent's request. Conferences become more common toward the end of the litigation process.
Conferences may be for updating the judge on discovery, addressing motions (requests for orders), discussing settlement or making preparations for trial. Most commonly, they occur in person at the courthouse but can also occur via phone, mail or by video call.
Some cases: Child's private testimony
If the case involves a child 12 or older, the judge interviews them privately before trial begins. The parents' lawyers, a guardian ad litem (if appointed) and a court reporter attend.
The judge asks the child whom they'd prefer to live with, but the final verdict does not have to reflect the child's preference. The opinions of children 14 and older hold more weight in the final verdict.
Step 5: Trial
The case eventually goes to trial if parents can't settle. Going to trial is rare, as most parents reach a resolution at mediation.
During the trial, each parent or their attorney presents evidence and questions witnesses to support their case for custody, support, etc. Then, the judge (or possibly a magistrate, in juvenile court) makes a decision based on what they've heard.
A trial for divorce or separation cannot begin until the case has been on file for 90 days.
Step 6: Final custody orders
After making a decision at trial or approving a settlement, the judge or magistrate signs the final order. (Note that in divorces and separations, the judge cannot approve a settlement before the case has been on file for 90 days.)
The order comes in the form of a parenting plan that covers residential and legal custody, child support and rules for co-parenting.
If you're divorcing or separating, the plan is one part of your final judgment, which also includes orders for matters like the division of property. A divorce isn't finalized until the expiration of the 30-day appeal period that begins once the judge signs the final judgment.
In any type of custody case, you can appeal to a higher court if you believe there was a legal error. To request changes without alleging a legal error, you can ask to modify your order.
Some cases: Parenting class
All divorcing parents must attend a Parent Education Seminar in person within 60 days after divorcing. The course covers the legal process and how parents can emotionally support their child, among other topics.
Parents must attend a course that's at least four hours long; some courts require longer. It might be broken into multiple sessions. There's a fee of about $45. The court may waive or reduce the cost for those who cannot afford it.
Parents may use another county's program to avoid going to the same class as each other. If parents cannot afford the costs, which vary by program, they can ask the court for a fee waiver.
Some courts require parents to file the certificate of completion they receive at the end of the course. In some jurisdictions, failure to attend could result in the judge limiting your custodial rights and holding you in contempt of court.
Throughout your case
During the child custody process, you may need to create a parenting plan, draft custody schedules, keep a log of interactions with the other parent, and more.
The Custody X Change online app enables you to do all of this in one place.
With a parenting plan template, customizable custody calendars, a parenting journal and beyond, Custody X Change makes sure you're prepared for whatever arises in your journey to custody.
Take advantage of our technology to stay on top of all the moving parts of your case.