When a minor child's parents need to travel out of town, be admitted to the hospital, or otherwise are unable to provide hands-on care for their kids, someone needs to step in.
While legal guardianship is available in the state of Tennessee when long-term supervision is required, the appointment of a temporary guardianship may be appropriate in a short-term situation. However, in many cases a power of attorney is a faster and easier way to accomplish this.
Guardianship of Minor Child in Tennessee
Every minor child in Tennessee must have a primary caregiver who takes care of the child making sure that they are safe and that their needs are met. The child's biological parents are first in line to serve as caregivers, and, if one of them is unable to do so, the other parent generally steps in.
However, if neither parent is able or willing to care for a child, another adult must be appointed to be the child’s legal guardian. This happens in a variety of situations. The minor child may need a guardian if both parents are unavailable. For example, if the parents:
- Have died.
- Are incapacitated.
- Are incarcerated.
- Abandon the child.
- Cannot care for the child properly because of addiction, mental health or other issues.
Decisions Made by a Legal Guardian
In Tennessee, the family law court appoints a legal guardian to care for, and make personal decisions relating to, the child.
The child usually lives with the guardian who makes decisions about where the child lives, their medical treatment and schooling. The court order gives the child’s legal guardian the right to make these decisions even if someone else is related to the child, and the child’s parent gave them permission to make those decisions.
Appointment of a Guardian in Tennessee
The laws regarding guardianship of a minor child are found in the Tennessee Code Section 34 Chapter 2. While any adult is eligible to file a petition for guardianship of a minor child in Tennessee, the law gives priority to certain categories of persons:
- Parent of the minor child.
- Individual named as preferred guardian by the child's parents in a will or other written document.
- Adult siblings of the minor child.
- Close relatives or family members.
- Other adults.
Anyone petitioning for guardianship of a minor child must offer evidence that they are physically and emotionally fit to care for the child. They must also establish that they have sufficient financial resources to maintain the minor child.
Court Oversight of a Guardian
A guardianship procedure does not involve a snap decision on the part of the court. Family court judges can, and often do, order a home study to make sure that the proposed lodgings are safe and secure and that the environment is the best choice for the child.
Any child 12 years or older can express their choice as well, and the court will take that into account.
Often a guardian is required to report to the court regularly to detail the child's welfare and to document how any financial support received toward the care of the minor child is spent.
Temporary Guardianship in Tennessee
In the normal course of events, custody of a minor child in Tennessee is decided through a lengthy court process. When an emergency situation arises, there isn't time for this. For example, there is no time to go through a lengthy court process if the child is in immediate danger or another type of emergency situation exists.
In that case, it may be necessary to file for emergency custody or guardianship by petitioning the court for temporary care of the child. This is sometimes called temporary custody or emergency custody.
Emergency Child Custody and Emergency Guardianship
Courts use both of these terms — emergency custody and emergency guardianship — when they are talking about the rights and responsibilities of an adult to a minor child.
But they are used in different contexts:
- Custody once referred to a divorced parent’s right to live with a child and make important legal decisions for them, but Tennessee has replaced the term with "parenting plan."
- Emergency custody is the term used when a parent wants legal custody in a pending divorce case.
- Emergency guardianship is the term used when parents are unable to care for the child for other reasons.
Any qualified adult can be appointed the legal guardian of a minor child. They must petition the court, offering evidence that the child is in immediate danger and that emergency guardianship is in the best interests of the child.
Power of Attorney to Care for Minor Child
Tennessee law provides another means to give legal authority to an adult to take care of a minor child in the state. This process is sometimes called "emergency guardianship," but is actually a power of attorney granted under Tennessee's Power of Attorney for Care of a Minor Child Act.
Like other powers of attorney, this is a legal document signed by the person making it in front of a notary. It gives a named agent the right to act on their behalf in certain, specified ways. The document must set out both the name of the agent and the scope of their authority.
When custodial parents need to leave town for a short period, they may arrange for a family member or close friend to take care of their child in their absence. They may wish to give that person the authority to make specific decisions, such as for emergency medical care for the child, if necessary.
Hardships Justifying a POA
The law provides that this delegation of authority is effective without the approval of a court as long as the POA document is properly executed.
Why might a parent do this? Hardships justifying the use of a power of attorney can include, but are not limited to:
- Serious illness or incarceration of a parent or legal guardian.
- Physical or mental condition of the parent or legal guardian of the child is such that proper care and supervision of the child cannot be provided.
- Loss of, or damage to, the child's home as the result of a natural disaster.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.