General Provisions

215

Rule 108: Injunctive Relief.

(a)   How Obtained.

(1) A request for injunctive relief shall be in the form of a motion or a petition, or on the court’s own initiative, and may be obtained by:

(A) An ex parte restraining order;

(B) An injunction issued during the pendency of a matter; or

(C) An injunction issued as part of a dispositional order.

(2) Every request for injunctive relief shall state whether a previous application for the relief has been refused by any court.

(b)  In General. 

(1)  Every ex parte restraining order or injunction shall be specific in terms and shall describe in reasonable detail the act restrained or enjoined.

(2)  Every ex parte restraining order or injunction shall be indorsed with the date and hour of issuance, shall be signed by the judge or magistrate granting it, and shall be filed in the clerk’s office.

(3)  Every ex parte restraining order or injunction shall be binding upon the parties to the action, their officers, agents and attorneys; and upon other persons in active concert or participation with them who receive actual notice of the ex parte restraining order or injunction by personal service or otherwise.

(c)    Ex Parte Restraining Order. 

(1)  An ex parte restraining order shall only restrict the doing of an act. 

(2)  An ex parte restraining order may be issued by the judge of the court in which the matter is pending or is to be filed, or by any magistrate serving such court. 

(3)  An ex parte restraining order may be issued when the court finds: (1) that a child may abscond or be removed from the court’s jurisdiction; or (2) that there is a danger of immediate harm to a child such that a delay for a hearing would be likely to result in severe or irreparable harm.

(4)  The standard of proof applicable in issuance of an ex parte restraining order shall be probable cause.  The court may consider a motion, petition, sworn affidavit, sworn testimony or reliable hearsay.

(5)  A copy of the ex parte restraining order shall be promptly served on each party by a person authorized to serve a summons.  If an ex parte restraining order is issued at the commencement of an action, a copy shall be served with the summons.

(6)  An ex parte restraining order becomes effective and binding on the party to be restrained at the time of service or when the party to be restrained is informed of the order, whichever is earlier. 

(7)  An ex parte restraining order shall expire by its terms and shall not exceed 15 days unless within such time period: (1) the court extends the order after affording the party to be restrained an opportunity to be heard, or (2) the party to be restrained consents to the extension.  Any such extension of an ex parte restraining order shall be in the form of an injunction.

(8) If the request for an ex parte restraining order is brought against a parent of a child and the relief requested would interfere with the parent's constitutional right to have care and control of the child, the court shall proceed with a preliminary hearing within 72 hours of entry of the ex parte order, pursuant to Rule 302, rather than the 15 day timeframe prescribed above.

(d)  Injunction.

(1)  An injunction may restrict or mandatorily direct the doing of an act, either temporarily or permanently.

(2)  Prior to the issuance of an injunction, the court shall afford the party to be enjoined notice, grounds therefore, and an opportunity to be heard.

(3)  An injunction may be issued, modified or dissolved by the judge or magistrate of the court in which the matter is pending.  The court shall only modify or dissolve an injunction when the court finds such to be consistent with the child’s best interests.

(4)  During the pendency of a matter, the court may issue an injunction when the court finds that the conduct of the person to be enjoined is or may be detrimental or harmful to the child.

(5)  As part of a dispositional order, the court may issue an injunction when the court finds that the conduct of the person to be enjoined is or may be detrimental or harmful to the child and would tend to defeat the execution of a dispositional order.

(6)  The standard of proof applicable in issuance of injunctive relief shall be preponderance of the evidence. Evidence shall be admitted in accordance with the Rules of Evidence. In the court’s discretion, any evidence so admitted may be admissible in the underlying matter and need not be repeated if all parties participated in the hearing for injunctive relief.

(7)  The court may issue an injunction upon such terms and conditions, and the injunction shall remain in force for such time, as the court determines to be consistent with the child’s best interests.

(e)   Injunctive Relief Against Non-Party.  The court may issue an ex parte restraining order, injunction, or no contact order against a person who is not a party to the dependent and neglected, delinquent, or unruly proceeding if that person’s conduct is or may be detrimental or harmful to the child.  In such cases, the person to be restrained or enjoined shall be a party only to the petition or motion for injunctive relief. Neither the request for injunctive relief nor the order granting injunctive relief shall confer party status in the underlying case on the person to be enjoined.

Advisory Commission Comments.

Injunctive relief may be issued pursuant to T.C.A. § 37-1-152.

The Commission has chosen to use the term “restraining order” to refer only to an ex parte order granted by the court, while the term “injunction” applies to all orders granted after a hearing. The Commission chose the term “injunction” to clarify that the court may restrain an act or mandatorily direct the doing of an act.

A dependent and neglect matter is an inquiry as to the status of a child rather than a proceeding to determine guilt or to apportion blame or liability among various persons. As the court stated in State Dep't of Children's Servs. v. Huffines-Dalton, No. M2008-01267-COA-R3-JV, 2009 Tenn. App. LEXIS 364, at *18, 2009 WL 1684679 (Tenn. Ct. App. June 15, 2009):

Under Tenn. Code Ann. § 37-1-129, the court must first hold a hearing and make findings whether a child is dependent and neglected within the meaning of the statute. “The function of the adjudicatory hearing is to determine whether the allegations of dependency, neglect, or abuse are true.” Accordingly, the adjudication is not against either parent or the custodian but addresses the question of whether the child is dependent and neglected for any of the reasons enumerated by the statute. During this adjudicatory phase, the parties are “entitled to the opportunity to introduce evidence and otherwise be heard in the party’s own behalf and to cross examine adverse witnesses,” Tenn. Code Ann. § 37-1-127(a), and the Rules of Evidence apply.

 (Citations omitted.)

Because a dependent and neglect proceeding may involve persons other than parents or guardians, such as “caretakers” as referenced in the definition of “abuse” in T.C.A. § 37-1-102(b)(1), or “persons with whom the child lives” under T.C.A. § 37-1-102(b)(12)(B), the Commission intended to clarify that injunctive relief may be sought against such persons. Such persons may not enjoy a legal relationship with the child but such person’s conduct may have caused or contributed to the child being found to be dependent and neglected. As the Court stated in In re: Melanie T., 352 S.W.3d 687, 697 (Tenn. Ct. App. 2011):

[I]t is clear that a biological or legal parent/child relationship is not essential to uphold a finding that a minor is “dependent and neglected.” The statute expressly states that a “child” is “dependent and neglected” if that child lives with a “parent, guardian or person” who “by reason of cruelty, … immorality or depravity is unfit to properly care for such child.”  By using the words “parent, guardian or person with whom the child lives,” the General Assembly made it perfectly clear that a dependent and neglect claim … does not require that the “unfit” person be a biological or legal parent of the child at issue. Therefore, a person who lives with a child need not be a biological or legal parent of the child in order for a “dependent and neglected” action to be maintained against that person.

(Emphasis in original; citations omitted.) 

Thus, the seeking of injunctive relief against such non-parent persons is allowed and does not, in and of itself, confer party status on such persons in the underlying dependent and neglect matter. Further, the proceeding regarding the issuance of injunctive relief may be separate from the underlying matter.

The issue of who, exactly, is a “party” to a dependent or neglect proceeding is not as straightforward as it first appears. Those with a legal relationship to the child, such as parents, are, of course, proper parties and are named respondents in such matters. The analysis grows more complex when the matter involves a step-parent or a boyfriend or girlfriend to a parent, those who have no legal interest in the child. Such persons may have caused or contributed to the child’s dependent and neglect status, and whose conduct is in issue in the proceeding, but may not be appropriate persons to take steps to regain entrance to the child’s life. The better practice is to view those more remote, legally, from the child as respondents in an injunction proceeding, but not as respondents in the underlying dependent and neglectmatter. 

The Commission notes City of Chattanooga v. Swift, 442 S.W.2d 257, 258 (Tenn. 1969) (“By the term ‘party’, in general, is meant one having a right to control proceedings, to make a defense, to adduce and cross-examine witnesses, and to appeal from the judgment”) (citing Boyles v. Smith, 37 Tenn. 105, 107 (Tenn. 1857)).

See Rule 110 for the computation of time.

[Amended as order filed December 21, 2016, effective July 1, 2017.]

Advisory Commission Comments [2017].

The rule is amended by deleting subdivision 108(a)(l)(D), which referred to no contact orders pursuant to T.C.A. § 37-1-152. Also, the last paragraph of the original Advisory Commission comment is deleted. These changes were necessary due to an amendment to T.C.A. § 37-1- 152.

The rule is also amended by deleting a paragraph in the original Advisory Commission Comments and adding the substance of that paragraph as the new subdivision (c)(8) of the rule.

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