Warrant for Physical Custody of Child Vacated in Columbia, TN Custody Case: In re Joel B.

Knoxville divorce lawyersFacts: Mother lives in California. Father lives in Tennessee. Child was born in Tennessee. A few months after Child’s birth, Mother left Tennessee with Child and returned to California.

Mother requested — and the California court entered — an ex parte a restraining order against Father and an ex parte order granting temporary custody of Child to Mother.

Father filed an action in Maury County to establish Child’s paternity and enter a permanent parenting plan. The Tennessee court declared Tennessee to be Child’s “home state” pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).

A jurisdictional challenge followed and a default judgment was entered against Mother in Tennessee. While Child was living with Mother in California, the Tennessee court issued an attachment for Child, stating, “An attachment for the body of [Child] shall immediately be issued. Upon securing the body of the minor child, temporary physical and legal custody of said child shall be immediately placed with [Father].”

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee Code § 36-6-235 addresses a court’s authority to issue a warrant for the physical custody of a child:

(a) Upon the filing of a petition seeking enforcement of a child-custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is immediately likely to suffer serious physical harm or be removed from this state.
(b) If the court, upon the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or be removed from this state, it may issue a warrant to take physical custody of the child. .. .
(c) A warrant to take physical custody of the child must:
(1) Recite the facts upon which a conclusion of imminent serious physical harm or removal from this jurisdiction is based;
(2) Direct law enforcement officers to take physical custody of the child immediately; and
(3) Provide for the placement of the child pending final relief….
(e) A warrant to take physical custody of a child is enforceable throughout this state.

After reviewing the record, the Court reasoned:

The warrant in this case is deficient in at least two respects. First there is no recitation of facts supporting a conclusion that the minor child was “imminently likely to suffer serious physical harm.” Tennessee Code § 36-6-235(b). Second, the court purported to make the warrant enforceable in California, whereas the statute contemplates that the warrants are only effective in this state.

The statutory text is clear that the warrants authorized by this section are enforceable only “throughout this state.” Accordingly, these warrants should not be directed to law enforcement officials nationwide. The UCCJEA does not provide state trial courts with license to issue nationwide orders to all state and federal law enforcement officials requiring them to snatch up children wherever and with whomever they may be found so that they can be spirited back to the state in which the enforcement proceeding is pending. Such an intrusive and potentially dangerous remedy would go far towards disrupting the interstate comity the UCCJEA was designed to promote.

Because of these deficiencies, we have concluded that the trial court erred in ordering the attachment of the minor child.

Accordingly, the trial court’s order ordering the attachment of the minor child was vacated.

In re Joel B. (Tennessee Court of Appeals, Middle Section, August 18, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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