Everything depends on one thing: is there an order?
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This is the fork, and it decides everything that follows.
With an order in place, the police have something concrete to enforce and you have a contempt remedy available. Without one, there is no order being violated, which means there is no crime and nothing for an officer to do. Your remedy is to file.
The Police
Officers do two things in this situation.
They document that something happened. That report becomes part of your record, and a record is what makes a judge act later.
They will attempt to enforce a court order. Attempt is the operative word. Whether an officer physically retrieves a child varies with the circumstances and the department, but with a valid order they have authority to act.
Custodial Interference
Custodial interference is a criminal offense in Tennessee, and it is narrower than people assume.
Not returning a child on time because the car broke down is not custodial interference. The statute reaches deliberate conduct, not lateness.
This is the part that surprises people. The statute protects a court order and “the rightful custody of a mother” as defined in Tennessee Code Annotated § 36-2-303, which is the provision giving an unmarried mother custody until an order says otherwise.
So where the parents were never married and there is no order: an unmarried father generally cannot claim custodial interference against the mother, because she holds rightful custody. The mother can potentially claim it against him, because her rightful custody is what the statute protects. More on unmarried fathers here.
The statute reaches a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of a child under eighteen.
Custodial interference is generally a Class E felony, but it drops to a Class A misdemeanor if the person who took the child returns the child voluntarily. Interfering with a noncustodial parent’s court-ordered visitation is a Class C misdemeanor.
Whether a given set of facts gets charged also depends on severity. Serious interference gets attention. A late exchange does not.
Emergency or Contempt
Either is available. What separates them is the risk to the child.
Triggered by risk of irreparable harm. Missing school. Missing necessary medical care. Not getting necessary medication. Those are the facts that move a court immediately. More on emergency custody here.
The ordinary route when an order is being violated but the child is not in danger. More on enforcement here.
If This Is Happening Now
Courts weigh a child’s settled circumstances. Every day a new arrangement stays in place, it looks more like the status quo and less like something that was done to you.
That is not a reason to panic. It is a reason not to spend two weeks negotiating by text before calling anyone.
Your Attorney
William Young · Of Counsel · Juvenile Court
Attorney William Young handles these matters in Shelby County Juvenile Court, where the parents were never married.
Emergency custody → · Unmarried fathers → · About William Young →
Sam Jaber · Divorce & Family Law
Attorney Sam Jaber handles them in circuit and chancery court, where the order came out of a divorce. He has practiced divorce and family law in Memphis for over a decade.
Common Questions
If there is a court order, the police will document what happened and will attempt to enforce it. Whether an officer physically retrieves the child varies with the circumstances and the department, but a valid order gives them authority to act. Without an order there is nothing for them to enforce.
Then there is nothing being violated, and calling the police accomplishes little. The remedy is to file. In Shelby County that means juvenile court if the parents were never married, and circuit or chancery court if the case arose from a divorce.
It requires intent. Not returning a child on time because a car broke down is not custodial interference. The statute at Tennessee Code Annotated section 39-13-306 protects a court order and also the rightful custody of a mother under section 36-2-303, which is the provision giving an unmarried mother custody until an order exists.
It runs one direction. An unmarried father generally cannot claim custodial interference against the mother, because she holds rightful custody until an order says otherwise. The mother can potentially claim it against him, because her rightful custody is what the statute protects.
Generally a Class E felony, dropping to a Class A misdemeanor if the person who took the child returns the child voluntarily. Interfering with a noncustodial parent's court-ordered visitation is a Class C misdemeanor.
Yes. The statute reaches a natural or adoptive parent, step-parent, grandparent, brother, sister, aunt, uncle, niece, or nephew of a child under eighteen.
Either is available, and the difference is the risk to the child. An emergency motion is triggered by risk of irreparable harm, such as missing school, missing necessary medical care, or not getting necessary medication. A contempt petition is the ordinary route when an order is being violated but the child is not in danger.
Quickly. Courts weigh a child's settled circumstances, and every day a new arrangement stays in place it looks more like the status quo. Spending two weeks negotiating by text before calling anyone works against you.
A child's preference is one factor a court considers, and it carries more weight as the child gets older, but it does not override a court order. The order stays in effect until a court changes it.
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