In Tennessee, parents sometimes must fight to maintain custody of their child after being convicted of a crime. Finding a criminal defense attorney and having to miss work for a criminal court case is already stressful enough. Just when these parents think they’ve made it through their case, they may now have to face child custody proceedings in juvenile court. For good reason, the laws are written to protect the best interest of the child. However, a criminal record does not necessarily prevent someone from being a good parent, and it isn’t always in the child’s best interest to take a parent out of their life.
The last thing a parent wants is to be separated from their child – let Best & Brock stand by your side through your criminal case, so that criminal convictions cannot be used against you in a child custody case.
|
|
Tennessee
If you’re facing criminal charges in Tennessee but have not yet been convicted, whether or not your child will be removed from your custody depends on the circumstances of the crime. After all, there is a presumption in criminal trials that the defendant is innocent until proven guilty. In addition, not all convictions are legally considered to make someone unfit as a parent.
T.C.A. 36-6-106(a)(8) instructs the court to consider the “moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child” in child custody proceedings. In assessing the fitness of a parent, courts are permitted to consider their criminal records, however this consideration depends on action being taken in juvenile court to initiate a determination on child custody. In most cases, the child’s other parent (such as in divorce proceedings) or the Department of Children’s Services (DCS) will initiate this action.
A child can come into the legal and physical custody of the state when the child has been found to be neglected or abused. Juvenile court judges make the determination of whether or not a child should enter the state’s custody, and ultimately determine whether that child will be released back into the custody of their parent. DCS tries to work with families to problem solve,
with the interest of returning children to their parents whenever possible. During the problem solving and potential custody hearing process, children may be placed in foster care. (DCS prefers to reduce trauma to the child by placing them in the care of relatives and family friends, so make sure you tell the juvenile court judge or a DCS agent if there is a friend or family
member who can take care of your child until they are released back into your custody.) If a child is placed in DCS’s custody as the result of their parent being arrested, confined, or detained, the child’s other parent or legal guardian must be informed before a hearing on child custody is conducted. If your child has been taken into DCS custody or if a hearing is being held to determine whether you will retain custody of your child, it is vital that you hire an attorney focusing on family law to guide you through the process.
DCS does not open a case every time a parent is arrested, though. If a parent is charged with a crime that does not impact the parent’s ability to serve the child’s best interest, it is unlikely that DCS will initiate child custody proceedings as a result of this charge. Of course, in certain situations, the circumstances of a parent’s crime can create an unsafe or unstable living environment for the child. For example, if an individual is indicted for trafficking illegal drugs out of their home, DCS may bring this charge/conviction up in child custody hearings to demonstrate that the home is not a safe environment for the child.
Under Tennessee law, being convicted of certain crimes is grounds for termination of parental rights. An order terminating parental rights, entered in juvenile court, has the effect of severing forever all legal rights and obligations of the parent or guardian of the child subject to the order (T.C.A. §36-1-113). A party seeking to terminate a parent’s rights “must prove … the existence of at least one of the statutory grounds for termination [and] that terminating the parent’s parental rights is in the child’s best interests” (In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004)). Convictions that are grounds for termination of parental rights proceedings include:
● severe child abuse
● first or second degree murder of the child’s other parent or legal guardian
● several crimes qualifying as severe child sexual abuse
● trafficking for commercial sex acts
● sex trafficking of children
(T.C.A. §36-1-113(g))
Parental rights may also be terminated if the parent has been sentenced to serve 10 or more years in a correctional facility when their child is under 8 years old, or when the parent is sentenced to serve 6 years or more and satisfies another requisite for termination of parental rights under T.C.A. § 36-1-113. While incarceration itself is not sufficient to terminate parental rights, Tennessee’s courts have held that a “parent’s decision to engage in conduct that carries with it the risk of incarceration is itself indicative that the parent may not be fit to care for the child” (In re Jamazin H.M., No. W2013-01986-COA-R3-PT (Tenn. Ct. App., filed May 28, 2014)).
 Garth Best was extremely helpful in my case. He explored and explained everything to me clearly and never stopped checking out every option. I am absolutely grateful I chose him as my attorney. Best and Brock are a great choice for representation. Thanks again.
- Jeremy ForgeyMatt Brock did an outstanding job with my case. Very thorough and knowledgeable attorney, highly recommended. Its very obvious through my interactions with him that he has the experience and knowledge to win in court. I will not go anywhere else. Great job, much appreciated.
- Chris Griffin |
Let’s look at a recent example. In In re A.E.T., No. M201501193COAR3PT (Tenn. Ct. App. July 26, 2016), Tennessee’s Court of Appeals upheld the termination of a father’s parental rights to his child after he was sentenced to 130 months in prison for a conviction of conspiracy to manufacture and distribute methamphetamine. The child was also removed from his aunt’s custody, due to DCS finding that she was involved in drug abuse. In this case, the father was found to have abandoned his child, while the aunt was deemed unfit for guardianship of the child due to her substance abuse.
Even if an individual cannot lose their parental rights altogether on the basis of their criminal charges, a parent’s criminal history can still impact the outcome of a custody hearing. In the event of a divorce, separation, or DCS investigation, child custody may be challenged in juvenile court. Evidence of a parent’s criminal history may then be entered to demonstrate that the parent does not meet the “moral, physical, mental and emotional” standards for a fit parent. For example: in marital separation proceedings, if one parent is under indictment for aggravated child abuse or child sexual abuse, the court is forbidden from awarding that parent any type of custody during the pendency under the indictment, excepting certain scenarios. The court may also modify existing child custody orders if a parent is later indicted for the aforementioned criminal offenses (TCA §36-6-101(2)(A)(v)). Although this parent may still be awarded visitation rights, the circumstances of the visitation must guarantee the safety of the child (i.e., by limiting visitation to supervised visits).
Take another example, such as when an allegation that a child is the victim of domestic violence is supported by a preponderance of the evidence in court. Tennessee law commands the juvenile court not to place the child in the custody of a parent who “presents a substantial risk of harm to that child” (T.C.A. §36-6-112). Thus, parents convicted of domestic assault, with their child as the victim, may lose custody of that child. This same law does provide for parents who make a good faith effort to protect their child from such victimization, though. Under the law, parents who tried to protect their child from domestic assault will not lose their custody or visitation rights as a result of that assault.
What to do if my kid catches charges?
More than anything else, parents want their kids to live happy and healthy lives. The stress that a parent undergoes when their child gets in trouble with the law can be debilitating. While worrying about how these charges will affect your child’s future, you also have to juggle attorney fees, the complicated juvenile court system, as well as your child’s own feelings surrounding the matter. When parents hire us to help their kids fight criminal charges, their goal is usually to get their child’s life back on track and keep them out of trouble in the future. These are not necessarily easy to accomplish, which is why you need an experienced criminal defense attorney on your side when your kid catches criminal charges.
Arrests and Questioning of Juveniles
Let’s start with what you should do when your child is arrested or written a citation for a criminal offense.
As soon as you’re made aware that your child has been criminally charged, you should advise them of their constitutional protection against self-incrimination. Like adults, juveniles have a right to notice (which includes parents being notified when their child is taken into custody), a right to counsel, a right to confront witnesses, and a privilege against self-incrimination in hearings that could result in them being confined to an institution (In Re Gault, 387 U.S. 1 (1967)). Officers are also required to advise your child of their Miranda rights in language they will understand before beginning to question them. However, juveniles are more easily intimidated by figures of authority and may not fully believe that they do not have to speak with officers. So, without a guardian or attorney present, juveniles should not make any statements to law enforcement. In fact, officers must make good faith efforts to locate a juvenile’s guardian(s) before beginning to question them. Make sure that you protect your child’s constitutional rights and help them consult with an attorney as soon as possible – including a state-appointed public defender if you are not able to hire private counsel. If your child is being detained, they can only be held for up to 48-hours without seeing a magistrate. Your child will likely be released from custody before this time frame elapses, but they may have to attend a detention hearing before being released. While being detained, your child is presumed to be innocent and retains all the same rights guaranteed to juveniles who are not detained during the litigation process.
If law enforcement decides to proceed with criminal charges, your child’s case will move into juvenile court. Every state maintains a separate court system for addressing juveniles who violate the law; Tennessee alone is home to 98 juvenile courts. In Tennessee, these courts are bound by the Tennessee Rules of Juvenile Procedure, a set of laws governing juvenile court proceedings. However, these rules allow a reasonable berth for actors in the court system to accommodate the needs of the community they serve. Across the board, the concept of the juvenile court system is that juveniles’ brains are not yet fully developed, so they have more potential for rehabilitation than adults do. The juvenile court system thus tends to focus more on second-chances than the adult court system does. The State’s goal is generally to teach kids who commit crimes a lesson, then put them back on track to becoming successful, law-abiding citizens. Depending on the crime committed, the juvenile court system applies different procedures for handling these cases.
Types of Crimes Committed by Juveniles
There are two types of crimes that juveniles can commit – status offenses and delinquent offenses.
Status offenses are acts that would not be against the law if the juvenile committing them were an adult, such as possession of alcohol while underage and violating local curfew laws. These age-based crimes make up roughly 20% of crimes committed by juveniles each year, and are almost always handled in juvenile court. In most jurisdictions, status offenses are considered a warning signal that a juvenile needs better supervision to prevent them from having future run-ins with the law. In Tennessee, juveniles who commit status offenses are often placed on probation so that the State can monitor their behavior and deter them from getting in trouble again. However, if the child violates the terms of their probation, they may be placed in the custody of the Department of Child Services. Therefore, if your child is committing crimes, it’s not only their own interaction with the law that you have to worry about. While the State does endeavor to keep families together when remedying status offenses, it will separate you from your child(ren) if their criminal behavior persists.
Delinquent offenses are violations that would be criminal no matter the age of the person committing them. These violations are divided into misdemeanors and felonies based on their severity. Misdemeanors commonly committed by juveniles include theft of property worth less than $500, vandalism, and simple assault (like getting into a fight at school). Felonies include possession of illegal drugs for resale, rape, and other serious crimes against people, property, or public wellbeing.
Juvenile Court
Misdemeanors, nonviolent felonies, and less serious felonies are usually handled in juvenile court. Juvenile court proceedings are conducted with a level of privacy not found in adult court. Court records are sealed, and many violations of the law are handled informally, in an effort to protect kids from having the mistakes of their childhood follow them into adulthood. The language of the juvenile court system follows this motif: kids charged with crimes are “juvenile delinquents” rather than defendants, and judges pass “adjudications” on their cases rather than convictions. Delinquents in juvenile courts are not guaranteed the right to a trial by jury, so judges are largely responsible for both determining guilt and sentencing. Judges for juvenile court are expected to have a certain level of expertise in handling juvenile delinquents, however many juvenile judges in Tennessee receive criticism for being too harsh or too lenient. Ultimately, the judge handling your child’s case can make a major difference in the way the state handles your child’s charges, so be sure to ask your child’s attorney about the judge’s disposition towards juvenile defendants.
Most juveniles who are adjudicated “delinquent,” or in other words guilty, will be placed on state probation. However, some juveniles are placed in state custody at a number of juvenile facilities across Tennessee. Typically, juveniles in state custody are placed in small facilities close to home, some of which are privately provided and specialize in services such as substance abuse treatment. Out-of-home care for juveniles in Tennessee is divided into Level 1 foster care, Levels 2 & 3 residential and congregate care, and Level 4 sub-acute psychiatric care. Generally, the Department of Children’s Services is responsible for placing juveniles in the appropriate venue for treatment. DCS opts for the least restrictive option whenever possible, however some juveniles are sentenced to what is termed “secure care.” Youths who have committed serious and/or violent felonies might find themselves in state-run facilities if restricting their freedom is deemed necessary to community safety. Wilder Youth Development Center in Fayette County, Tennessee is an example of one of these facilities: Wilder is a 120-bed facility that houses delinquent male juveniles aged 14 to 18. The facility is responsible for providing educational services alongside rehabilitative services.
Can my Child be Tried as an Adult?
When a juvenile commits a particularly serious delinquent offense, the juvenile court may transfer their case to criminal court. This is what the phrase “tried as an adult” refers to. In this situation, the juvenile court has 90 days from the date the juvenile was charged with an offense to initiate the transfer to criminal court. To complete the transfer, the court must hold a hearing to find reasonable grounds to believe that the juvenile committed the acts alleged and that the interests of the community require the juvenile to be placed under restraint or discipline. The prosecution has the burden of proving not only these elements, but also that the juvenile is not committable to an institution for the intellectually disabled or mentally ill – a preferred alternative to incarceration for juveniles. If a juvenile appears “in any way mentally ill or intellectually disabled,” the court must order a psychological evaluation during the transfer proceedings. Generally, if mental illness or intellectual disability is established, the court will order the juvenile be sent to a specialized rehabilitative facility, rather than transfer the juvenile to criminal court (Rule 208 of the Tennessee Rules of Juvenile Practice and Procedure).
If the prosecution is able to prove to the court that the necessary criteria for transfer are met, the juvenile may be transferred to criminal court and tried as an adult. This will introduce the risk of harsher penalties with less focus on rehabilitation. For this reason, transfer to criminal court is reserved for serious offenses such as murder. In these cases, transfer to criminal court may actually be advantageous to juveniles facing criminal charges. The Supreme Court ruled in McKeiver v. Pennsylvania, 403 U.S. 528 (1971) that juveniles do not have a right to trial by jury in juvenile court. While the individual states may decide to reserve juveniles’ right to a jury trial, Tennessee does not guarantee this right, so most juvenile cases in the state are adjudicated by the judge. For a serious case, the juvenile may be better off having their guilt determined by a jury of their peers in criminal court. However, if a juvenile is convicted in criminal court, they may be sentenced to incarceration, and further may have to serve their term of imprisonment in an adult facility.
You need the BEST representation for you and your child!
If you’ve been charged with a crime, especially if you’re undergoing divorce or an investigation by DCS, you absolutely must contact a criminal defense attorney and family law attorney. Your criminal defense attorney will fight for a fair resolution to your case and defend against convictions that may result in custody of your child(ren) being revoked. Meanwhile, a family law attorney can guide you through the juvenile court process, particularly child custody hearings.
Related VideosShould I Plead Guilty? Choosing a Criminal Defense Lawyer |