Child Custody and Criminal Charges in Tennessee

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.


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.

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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 Forgey

Matt 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.

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.

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