Non-Parent Custody in Tennessee: How Relatives File for Legal Custody

What Non-Parent Custody Means in Tennessee

Non-parent custody — sometimes called third-party custody — is a court order giving a relative or other non-parent legal and physical custody of a child under T.C.A. Title 36, Chapter 6. It's a domestic-relations judicial decree, separate from a guardianship under Title 34.

The practical difference matters. A custody order establishes your decision-making authority over the child, can set child support obligations for the biological parents, and defines any visitation schedule. A guardianship does similar things but under different statutory rules and different courts, and it adds ongoing reporting requirements like annual property accountings.

The Constitutional Hurdle: Substantial Harm

Tennessee parents have constitutionally protected superior parental rights, established by the U.S. Supreme Court in Troxel v. Granville and reaffirmed by the Tennessee Supreme Court in Blair v. Badenhope (77 S.W.3d 137).

Before the court can even consider a child's best interests, you must prove by clear and convincing evidence that placing or keeping the child with the parent would cause a risk of substantial harm. This is not about whether you'd provide a better home — it's about whether the parent's custody would actively endanger the child.

The standard changes when a court already entered a valid custody order. In Blair v. Badenhope, the Tennessee Supreme Court held that a parent generally cannot invoke superior parental rights alone to modify a valid order in favor of a non-parent, even when the parent voluntarily gave the non-parent custody. A temporary informal arrangement is different.

Where to File

Juvenile court has concurrent jurisdiction with circuit and chancery courts over custody matters involving children born out of wedlock; the court that issued an existing custody decree retains control over changes to that decree. A custody order does not appoint you to manage the child's property. If the child has property to manage, such as an inheritance, insurance settlement, or trust, you may need a separate guardianship under Title 34.

Title 36 child-custody proceedings, including those heard in juvenile court, are governed by the Tennessee Rules of Civil Procedure. Venue for your case depends on the type of proceeding and any existing order. Title 37 venue rules apply to Title 37 proceedings: venue generally lies where the child resides, while a dependency-or-neglect proceeding may be brought where the child is present when it starts.

For an initial custody determination, Tennessee has jurisdiction if it is the child's home state or another basis in T.C.A. § 36-6-216 applies. The home state is generally where the child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the proceeding; for a child younger than six months, it is the state where the child lived with such a person from birth. If the child recently moved, the former home state may still qualify for a proceeding begun within six months of the move if a parent or person acting as a parent continues to live there. See T.C.A. §§ 36-6-205(7) and 36-6-216.

What the Petition Must Include

Your petition should state:

• The child's full name, date of birth, and address
• The names and addresses of all living parents and anyone with legal custody
• The specific factual grounds for your petition — what creates the risk of substantial harm
• Disclosure of all prior custody orders, protective orders, or pending cases involving the child in any state
• A UCCJEA declaration

Your first pleading in a child-custody proceeding must provide, under oath, the information required by T.C.A. § 36-6-224. You may put it in the pleading or attach a separate affidavit; the information includes the child's address, five-year residence history, and any prior or related proceedings.

What Happens After Filing

The court issues a summons, which must be served on all parents and anyone with legal custody. If a parent consents, they sign a Consent and Waiver of Notice. If they oppose or can't be found, you follow the contested or service-by-publication process.

The judge may appoint a Guardian ad Litem — an attorney who investigates the child's situation and files a recommendation. Ask the clerk whether the court requires any background checks in your case. At the hearing, you present evidence supporting your petition, and the judge decides based on the substantial-harm standard and the child's best interests.

If you're filing without a parent's consent in juvenile court, expect a contested process. The Tennessee Rules of Civil Procedure generally give a parent 30 days after service of the summons and petition to answer under Rule 12.01. The court sets the hearing under the applicable local procedure.

The Guardianship and Custody for Grandparents and Relatives in Tennessee guide covers the entire filing process from choosing between guardianship and custody through the final order, with worksheets for tracking service of process and hearing preparation.

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