How to Get Custody of a Grandchild in Tennessee When the Parent Is Incarcerated

When a parent goes to prison in Tennessee and you're the grandparent already caring for the child, you have a clear path to legal authority — but the type of order you need depends on whether the other parent is available and willing to cooperate. If both parents are incarcerated or the other parent is absent, an uncontested guardianship petition is the most direct route. If one parent is free and involved, you may need to demonstrate substantial harm under the Blair v. Badenhope standard before the court will override their parental rights.

Your Legal Options

Tennessee law gives relatives three main pathways when a parent is incarcerated:

Power of Attorney for Care of a Minor Child (T.C.A. §§ 34-6-302–34-6-303) — A parent whose incarceration creates a hardship may delegate temporary caregiving authority to an adult Tennessee resident by a written power of attorney, without a court filing. The instrument must be signed and acknowledged before a notary or two witnesses. It does not grant legal custody, and the other parent's consent or notice may be required depending on custody. It also requires the parent's cooperation, which isn't always available.

Minor Guardianship (T.C.A. Title 34, Chapters 1 & 2) — A court order granting you legal authority over the child's person, property, or both. Person-only guardianship petitions may be brought in Juvenile Court in a county with venue. Property or combined cases may be brought in a court exercising probate jurisdiction or another court of record in a county with venue. This is the strongest option when a parent can't or won't sign a Power of Attorney.

Third-Party Custody (T.C.A. Title 36, Chapter 6) — A domestic relations order granting you legal and physical custody while preserving parental visitation rights. This works when you want the court to define what contact the incarcerated parent has after release.

The Incarceration-Specific Challenges

Serving notice in prison. T.C.A. § 34-1-106 requires service of the petition under the Tennessee Rules of Civil Procedure and separate notice to the closest relatives named in the petition and the child's present custodian by certified mail or personal service. A parent with parental rights should be included among the relatives to notify. The Tennessee Department of Correction's Felony Offender Information (FOIL) search lists location information for felony offenders in TDOC custody. For a county-jail parent, confirm the facility with that jail. Budget $52 or more per address for sheriff service.

The other parent. If only one parent is incarcerated and the other is alive and has legal rights, include that parent in the required notice too. If a parent's mailing address cannot be ascertained after reasonable effort, notice may be published after a sworn statement under T.C.A. § 21-1-203; publication runs for four consecutive weeks under § 21-1-204.

The consent question. An incarcerated parent who consents to the guardianship simplifies everything. Some parents sign consent from prison, especially when they know the alternative is a DCS removal. If the parent won't consent, you'll need to meet the substantial-harm threshold that Tennessee courts require under Blair v. Badenhope before a nonparent can obtain custody over a parent's objection.

Step-by-Step Process

1. Identify the right court. If you're seeking guardianship of the child's person only, you may file in Juvenile Court in the county where the minor resides, the parents reside, or, if the parents live apart, the custodial parent resides (T.C.A. § 34-2-101). If you need authority over the child's property (inheritance, insurance settlements), file in a court exercising probate jurisdiction or another court of record in a county with venue.

2. Prepare the petition. Under T.C.A. § 34-2-104, the petition must be sworn. Include the minor's name, date of birth, residence and mailing address; the petitioner's and proposed guardian's information; the closest relatives and present custodian who should be notified; and the reason for seeking appointment. If you request authority over property, include the specified information about the minor's property, income, expenses, and proposed management plan. Because guardianship is a child-custody proceeding under Tennessee's UCCJEA, also include the sworn information required in the first pleading or an attached affidavit by T.C.A. § 36-6-224: the child's present address or whereabouts, where the child lived during the past five years, the names and present addresses of those with whom the child lived, and known custody or visitation proceedings.

3. File and pay fees (or apply for a waiver). Filing fees vary by county — Davidson County Juvenile Court lists $100 for other petitions, and Shelby County Probate Court lists $341.50 for a guardianship petition. A Tennessee resident may commence a civil action without paying costs upfront by filing the pauper's oath and Uniform Civil Affidavit of Indigency under T.C.A. § 20-12-127; costs are not forgiven, and their collection is suspended until the court taxes them.

4. Serve notice. Serve the petition as the Tennessee Rules of Civil Procedure require. Separately notify the closest relatives named in the petition and the child's present custodian by certified mail or personal service (T.C.A. § 34-1-106). If a parent's mailing address cannot be ascertained after reasonable effort, file the sworn statement required by T.C.A. § 21-1-203 to seek notice by publication.

5. Background checks. Kinship caregivers seeking guardianship through the court system may need criminal-history screening, including fingerprints submitted through IdentoGO for TBI/FBI checks. Costs run $35–$50 per adult household member.

6. Attend the hearing. Bring certified copies of the child's birth certificate, proof of service on both parents, your background check results, and any evidence supporting your petition. If uncontested, hearings are typically brief. If the parent objects from prison (they can sometimes participate by phone or video), the court applies the Blair v. Badenhope substantial-harm analysis.

Who This Is For

• Grandparents already caring for a child whose parent is in a Tennessee state prison or county jail
• Relatives who need legal authority for school enrollment, medical care, or benefits while a parent serves a sentence
• Caregivers whose child's parent was recently arrested and expect a lengthy incarceration
• Grandparents who had informal custody and now need a court order because institutions are requesting one

Who This Is NOT For

• Situations where DCS has already taken custody of the child (those follow the dependency and neglect track with separate rules)
• Custody disputes between two fit parents going through divorce
• Relatives outside Tennessee seeking custody of a child who lives in another state (UCCJEA home-state rules apply)

After the Order

Letters of Guardianship can document the court's appointment when the child's school, doctor, or an agency asks for proof. Benefit rules differ: DCS says some relatives may qualify for a Child Only grant with a Power of Attorney, and RCP eligibility may be based on informal family care or legal custody or guardianship. A court custody order is required for the RCP monthly stipend.

If the parent is eventually released and wants to regain custody, they'll need to petition the court for modification. The court will evaluate whether circumstances have changed and whether modification serves the child's best interests.

The Tennessee Guardianship and Custody Court Process Guide covers each of these steps in detail, including service of process templates, a diligent search tracker, and a hearing preparation worksheet — built for relatives filing without an attorney.

Frequently Asked Questions

Can a parent sign over custody from prison in Tennessee?

A parent whose incarceration prevents them from caring for the child may delegate temporary care authority under T.C.A. § 34-6-302. The written power must be acknowledged before a notary or two witnesses under § 34-6-302. If both parents are living and have legal custody, both must execute it; if only one has legal custody, that parent executes it, and the other parent's written consent or an explanation why it cannot be obtained is required under § 34-6-303. For a full guardianship, a parent can consent to the petition, which can simplify the court process.

Do I need to serve an incarcerated parent with guardianship papers?

T.C.A. § 34-1-106 requires service of the petition under the Tennessee Rules of Civil Procedure and separate notice to the closest relatives named in the petition and the child's present custodian by certified mail or personal service. A parent with parental rights should be included among the relatives to notify. Use the Tennessee Felony Offender Information (FOIL) search for location information about felony offenders in TDOC custody; for a county-jail parent, confirm the facility with that jail.

What if the incarcerated parent objects to the guardianship?

The court applies the Blair v. Badenhope substantial-harm standard. You'll need to show by clear and convincing evidence that the child faces a risk of substantial harm if placed or kept in the parent's custody. The parent's incarceration alone isn't automatically sufficient — the court looks at the totality of circumstances, including the length of the sentence, the child's current stability, and what arrangements the parent can provide.

Can I get an emergency guardianship if a parent was just arrested?

Under T.C.A. § 34-1-132, a court may appoint an emergency guardian for up to 60 days if following the usual procedures would likely cause substantial harm to the child's health, safety, or welfare and no other person appears able and willing to act in the child's best interests. The order may grant only the powers specified by the court.

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