Mother’s Superior Parental Rights Remain After Voluntary Transfer of Custody to Non-Parent

Facts: The parents of a minor child separated shortly after the child’s first birthday, and they were divorced in May 2007. Mother was designated the child’s primary residential parent in the Tennessee Final Decree of Divorce.

Three years later, Father and the child’s maternal grandmother filed for emergency custody of the minor child, alleging that the Mother was homeless and suffering from mental health issues. The court granted Father temporary emergency custody of the minor child. The following month, Mother and Father entered an “Interim Agreed Order”, which directed that the child would physically reside with the maternal grandmother. Mother’s visits were to be supervised, but they were not limited in any other way.

Under a second agreed order, entered nearly nine months later, the parties agreed that the grandmother would be granted “full physical custody” of the child. This order stated that legal custody would be split between the parents, and it further stated that Mother did not waive any of her parental rights.

Mother eventually filed a petition requesting to have custody returned to her. Mother asserted that she was employed and had appropriate housing. She had also undergone treatment for her mental health issues. In response, Grandmother argued that Mother had waived her superior parental rights. The Tennessee trial court concluded that Mother was afforded a presumption of superior parental rights and that Grandmother, therefore, must prove by clear and convincing evidence that the return of the child to Mother would expose the child to substantial harm.


This case involved competing claims for custody between a parent and a non-parent. Mother claimed that Grandmother was required to show by clear and convincing evidence that returning the child to Mother would result in substantial harm. Grandmother, on the other hand, argued that Mother was required to prove a material change in circumstances to regain custody of the child. The burden of proof depends on whether Mother retained her superior parental rights.

The Tennessee constitution protects the fundamental right of natural parents to have the care and custody of their children. Persons who are not a biological parent do not enjoy this same constitutionally protected interest. In general, when faced with a custody dispute between a parent and a non-parent, Tennessee courts must favor the biological parent.

In Tennessee, if a parent retains superior parental rights, he or she cannot lose custody of their child to a non-parent unless the court finds there would be substantial harm to the child.

However, this standard does not apply when a parent files to modify a valid Tennessee court order that placed custody of the child with a non-parent. If a parent has lost superior parental rights, a Tennessee trial court should only consider whether there has been a material change in circumstances and what is in the minor child’s best interest. This is true even if the biological parent agreed to the change of custody initially. A biological parent’s transfer of custody to a non-parent, with knowledge of the consequences of that transfer, operates as a waiver of superior parental rights.

The Tennessee Supreme Court has established four circumstances when a biological parent retains his/her superior parental rights:

  1. There is no court order transferring custody from the biological parent;
  2. The order transferring custody from the biological parent is accomplished by fraud or without notice to the parent;
  3. When the order transferring custody is invalid on its face; and
  4. When the biological parent cedes only temporary and informal custody.

The entry of an order awarding custody to a non-parent generally prohibits a biological parent from thereafter asserting superior parental rights, but this is not true where an order grants only temporary custody of the child to the non-parent. There were three orders entered in this case: First, an “Emergency Temporary Custody Order”; Second, an “Interim Agreed Order”; and Third, “Agreed Temporary Order.” The Tennessee trial court determined that each of these orders was temporary in nature, and the Tennessee Court of Appeals agreed. Therefore, Mother had retained her superior parental rights.

Custody decisions are “temporary” in that they remain under the control of the court and can be modified upon a proper showing. However, Tennessee law distinguishes between temporary and final orders of custody. An interim order adjudicates an issue preliminarily, while a final order completely and fully defines the parties’ rights with regard to the issue – it essentially leaves nothing else for the trial court to do.

The fact that the child resided with the Grandmother for several years following the entry of the temporary custody order does not negate the Mother’s ability to rely on her superior parental rights.

The Tennessee Court of Appeals agreed with the trial court that Mother retained her superior parental rights and that Grandmother had the burden to show that a return of custody to Mother would expose the child to substantial harm.

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