Can a Tennessee probate court appoint a guardian for an undocumented immigrant minor?

Plain-English summary

Tennessee's guardianship statute, Tenn. Code Ann. § 34-2-101, lets juvenile, probate, circuit, and chancery courts appoint a guardian of the person for a minor. The action has to be brought in the "county of residence" of the minor, or of the minor's parents, or of the custodial parent if the parents live apart. The AG was asked whether a probate court could appoint such a guardian when the minor is undocumented.

The AG concluded that the court could, so long as the minor (or the parent whose county is relied on for venue) had established domicile in a Tennessee county. The reasoning followed three steps. First, "county of residence" in the guardianship statute means domicile, as the Tennessee Court of Appeals held in the conservatorship context in In re Conservatorship of Clayton, 914 S.W.2d 84 (Tenn. Ct. App. 1995). Second, whether someone is domiciled in Tennessee is a question of Tennessee law; domicile requires the person to actually live somewhere with intent to remain. Third, U.S. Supreme Court precedent (Plyler v. Doe, 457 U.S. 202 (1982)) confirms that illegal entry into the country "would not, under traditional criteria, bar a person from obtaining domicile within a State," and nothing in Tennessee law disqualifies an undocumented person from establishing county domicile for guardianship purposes.

The AG did note a separate carve-out for higher-education residency: 2014 Tenn. Pub. Acts, ch. 745, which limits in-state tuition treatment to U.S. citizens meeting other requirements, and Board of Regents rules that bar undocumented persons from establishing domicile for in-state tuition. Those rules are specific to higher-education tuition and do not affect guardianship.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This area of law also interacts with federal Special Immigrant Juvenile Status (SIJS) practice under 8 U.S.C. § 1101(a)(27)(J), which routinely depends on state-court findings about custody and a return-to-home-country determination. Anyone researching this opinion today should check current federal SIJS guidance.

Common questions

Q: What does "county of residence" mean in the guardianship statute?
A: The Tennessee Court of Appeals in In re Conservatorship of Clayton held that "county of residence" in the related conservatorship statute means legal residence or domicile, not just a current physical location. The AG read § 34-2-101's identical phrase to carry the same meaning.

Q: What is "domicile" under Tennessee law?
A: A permanent home where the person intends to return and to remain. Under Conservatorship of Clayton, a person may have multiple residences but only one domicile. Changing domicile requires (1) actually changing residence, (2) intending to abandon the old domicile, and (3) intending to establish a new one.

Q: How does Plyler v. Doe matter to this question?
A: Footnote 22 of Plyler states that illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a state. That is the AG's authority for treating undocumented status as not categorically disqualifying.

Q: Do other states allow undocumented immigrants to be domiciled there?
A: The AG cited several state-court decisions reaching that conclusion in various contexts: Munoz-Hoyos v. de Cortez (Colorado; cost-bond residency), Padron v. Padron (Georgia; dissolution-of-marriage residency), Caballero v. Martinez (New Jersey; Unsatisfied Claim and Judgment Fund residency), and St. Joseph's Hospital v. Maricopa County (Arizona; emergency medical-care statute county residency).

Q: Are there Tennessee carve-outs?
A: Yes, for higher-education in-state tuition. 2014 Tenn. Pub. Acts, ch. 745, restricted in-state tuition to U.S. citizens meeting residency and education requirements; Tenn. Comp. R. & Regs. 0240-2-2-.02(3) (Board of Regents) says undocumented persons cannot establish domicile in Tennessee for tuition purposes "regardless of length of residence." The AG flagged these as context but observed they do not control guardianship.

Q: Does this opinion address the substantive standards for appointing a guardian?
A: No. The opinion is about jurisdiction and venue, specifically the threshold question whether the court has power to act when the minor is undocumented. Substantive standards (best interests, parental rights, etc.) are governed by other provisions of Title 34.

Background and statutory framework

Tennessee's guardianship scheme distinguishes between guardianship (for minors) and conservatorship (for adults with disabilities). Tenn. Code Ann. § 34-1-101 defines both. Section 34-2-101 routes minor-guardianship actions among juvenile, probate, circuit, and chancery courts, and ties venue to "county of residence."

The opinion's central interpretive move is reading "county of residence" in § 34-2-101 as a domicile-based test, mirroring the conservatorship reading in Conservatorship of Clayton. The mechanical question that follows, whether undocumented persons can have a Tennessee domicile, is governed by Tennessee's domicile law, which focuses on the person's actual residence and intent to remain rather than on immigration status.

The federal-law overlay is thin. Plyler v. Doe makes clear that immigration status alone does not disqualify a person from being domiciled in a state. The opinion's survey of out-of-state cases shows that other states' courts have applied the same logic in a variety of legal settings.

The opinion does not directly address Special Immigrant Juvenile Status, but state-court guardianship orders are often a prerequisite to SIJS petitions filed with U.S. Citizenship and Immigration Services. The AG's bottom line, that probate courts have jurisdiction to enter such orders, is therefore practically important for SIJS practice in Tennessee.

Citations and references

Statutes and rules:
- Tenn. Code Ann. § 34-1-101 (guardian and conservator definitions)
- Tenn. Code Ann. § 34-2-101 (jurisdiction and venue for minor guardianships)
- Tenn. Code Ann. § 34-3-101 (conservatorship venue; analogous "county of residence" language)
- Tenn. Code Ann. §§ 49-8-104(b)(1), 49-9-105(b)(1) (in-state tuition citizenship limit)
- Tenn. Comp. R. & Regs. 0240-2-2-.01; 0240-2-2-.02(3) (Board of Regents domicile rule)
- 2014 Tenn. Pub. Acts, ch. 745
- Restatement (Second) of Conflict of Laws § 13, cmt. b (1971)

Cases:
- In re Conservatorship of Clayton, 914 S.W.2d 84 (Tenn. Ct. App. 1995) (Tennessee Court of Appeals)
- Plyler v. Doe, 457 U.S. 202 (1982) (U.S. Supreme Court)
- Cho v. Jeong, 1997 WL 306017 (Tenn. Ct. App. June 6, 1997) (Tennessee Court of Appeals)
- Anene v. Anene, 1996 WL 557802 (Tenn. Ct. App. Oct. 2, 1996) (Tennessee Court of Appeals)
- Napletana v. Hillsdale College, 385 F.2d 871 (6th Cir. 1967) (federal court of appeals)
- Munoz-Hoyos v. de Cortez, 207 P.3d 951 (Colo. Ct. App. 2009) (Colorado Court of Appeals)
- Bustamante v. Bustamante, 645 P.2d 40 (Utah 1982) (Utah Supreme Court)
- Padron v. Padron, 641 S.E.2d 542 (Ga. 2007) (Georgia Supreme Court)
- Caballero v. Martinez, 897 A.2d 1026 (N.J. 2006) (New Jersey Supreme Court)
- St. Joseph's Hosp. and Med. Ctr. v. Maricopa Cnty., 688 P.2d 986 (Ariz. 1984) (Arizona Supreme Court)

Earlier AG opinion:
- Tenn. Att'y Gen. Op. 01-104 (June 27, 2001)

Subject

Opinion No. 14-84, Guardianships for Undocumented Alien Minors, September 16, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-084.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 16, 2014
Opinion No. 14-84
Guardianships for Undocumented Alien Minors

QUESTION

May a probate court establish guardianship of the person for undocumented alien minors?

OPINION

If an undocumented alien minor, the minor's parents, or the minor's custodial parent has established domicile in Tennessee, a probate court may establish guardianship of the person for the undocumented alien minor.

ANALYSIS

Tenn. Code Ann. § 34-2-101 grants concurrent jurisdiction to the juvenile, probate, circuit, and chancery courts to appoint guardians of the person for minors.

(a) Actions for the appointment of only a guardian of the person may be brought in the juvenile court in the county in which there is venue. Actions for the appointment of a guardian of the person or property or both may be brought in a court exercising probate jurisdiction or any other court of record in the county in which there is venue.

(b) An action for the appointment of a guardian may be brought in the county of residence of the minor, the county of residence of the minor's parents or, if the minor's parents are living apart, the county of residence of the custodial parent.

Tenn. Code Ann. § 34-2-101 (emphasis added).

The only statutory requirement is that the action be brought in the "county of residence" of the minor or the minor's parents or custodial parent. "County of residence" is not defined, but the term has been defined in the conservatorship context. In In re Conservatorship of Clayton, 914 S.W.2d 84 (Tenn. Ct. App. 1995), the Tennessee Court of Appeals held that "the term 'county of residence' in Tenn. Code Ann. § 34-13-101(b) [now § 34-3-101(b)] means the county of the disabled person's legal residence or domicile and that our courts cannot exercise personal jurisdiction in proceedings to appoint a conservator over disabled persons who just happen to be within their territorial jurisdiction." 914 S.W.2d at 91. Conservatorship proceedings are akin to guardianship proceedings,[1] so this definition is properly applied to the term "county of residence" in Tenn. Code Ann. § 34-2-101(b).

Whether a person is domiciled in a state is determined, for state-law purposes, by the laws of that state. Munoz-Hoyos v. de Cortez, 207 P.3d 951, 952 (Colo. Ct. App. 2009); see Cho v. Jeong, No. 03A01-9608-CV-00257, 1997 WL 306017, at *5 (Tenn. Ct. App. June 6, 1997) (quoting Bustamante v. Bustamante, 645 P.2d 40, 42 (Utah 1982)) ("A state must determine who qualifies as a resident under its own laws . . . ."); Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967) ("[C]ustomarily the federal courts look to state law . . . for definitions of terms such as 'domicile' which are direct products of state law."). See also Restatement (Second) of Conflict of Laws § 13, Comment b (1971) ("The forum's rules of domicil are applied when domicil is a fact necessary to the judicial jurisdiction of the state of the forum . . . ."). Under Tennessee law, "domicile" means a person's permanent home where he or she intends to return and to remain; it is not simply a place of abode. Conservatorship of Clayton, 914 S.W.2d at 89. While a person may have more than one residence, he or she can have only one domicile, and to change domicile, a person must: "(1) actually change his or her residence to a new place; (2) intend to abandon his or her old domicile; and (3) intend to establish a new domicile at the new residence." Id.

"[I]llegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State." Plyler v. Doe, 457 U.S. 202, 227 n.22 (1982). No Tennessee court has addressed the question whether an undocumented alien may establish domicile in Tennessee. In Cho v. Jeong, 1997 WL 306017, the Tennessee Court of Appeals held that a non-U.S. citizen could establish domicile in Tennessee for purposes of obtaining a divorce, but the plaintiff in that case had legally entered the United States. Id. at 5-7. See also Anene v. Anene, No. 03A01-9511-CV-00387, 1996 WL 557802, at 2-3 (Tenn. Ct. App. Oct. 2, 1996) (holding that trial court properly assumed jurisdiction of divorce proceeding in which plaintiff, a citizen of Nigeria, had gained legal entry to the United States). Likewise, in Tenn. Att'y Gen. Op. 01-104 (June 27, 2001), this Office assumed an alien's legal entry when it opined that Tennessee courts have jurisdiction to grant a non-U.S. citizen's application for a name change. Some state courts, however, have held that a person's immigration status does not preclude him or her from establishing domicile or residency for certain purposes. See, e.g., Munoz-Hoyos, 207 P.3d at 953 ("[T]he proper determination of [plaintiff's] residence for purposes of the cost bond statute was not dependent on her immigration status, but on the evaluation of her place of domicile and her subjective intent."); Padron v. Padron, 641 S.E.2d 542, 543 (Ga. 2007) ("A person's immigration status does not, as a matter of law, preclude that person from establishing residency for purposes of obtaining a dissolution of marriage."); Caballero v. Martinez, 897 A.2d 1026, 1033 (N.J. 2006) ("We hold that an undocumented alien's intent to remain in New Jersey can satisfy the intent required by the [Unsatisfied Claim and Judgment Fund] to qualify as a 'resident.'").

"Plyler makes it patently clear that there is no federal impediment to finding that an undocumented person qualifies as a resident of a county of a state." St. Joseph's Hosp. and Med. Ctr. v. Maricopa Cnty., 688 P.2d 986, 992 n.6 (Ariz. 1984). And nothing in Tennessee law precludes an undocumented alien from establishing domicile in a county of the State for purposes of the appointment of a guardian under Tenn. Code Ann. § 34-2-101.[2] See St. Joseph's Hosp., 688 P.2d at 992 (holding, in the absence of any state law to the contrary, that illegal entry into the United States does not disqualify an alien from becoming a county resident for purposes of statutes governing emergency medical care). A county probate court may therefore establish guardianship of a person for an undocumented alien minor where the minor, the minor's parents, or the minor's custodial parent has established domicile in the county.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

KATHRYN A. BAKER
Assistant Attorney General

Requested by:
The Honorable Brian Kelsey
State Senator
7 Legislative Plaza
Nashville, Tennessee 37243

[1] A conservator is a person appointed by the court to exercise the decision-making rights and duties of a person with a disability, Tenn. Code Ann. § 34-1-101(4)(A); a guardian is a person appointed by the court to provide supervision, protection, and assistance of and for a minor, id. § 34-1-101(11).

[2] Cf. Tenn. Code Ann. §§ 49-8-104(b)(1), 49-9-105(b)(1) (as amended by 2014 Tenn. Pub. Acts, ch. 745, §§ 1, 2) (a prospective college student may be classified as a Tennessee resident for purposes of charging in-state tuition "if the student is a citizen of the United States, has resided in Tennessee for at least one (1) year immediately prior to admission and has [graduated from a Tennessee secondary school or earned a Tennessee high-school equivalency diploma]" (emphasis added)); see also Tenn. Comp. R. & Regs. 0240-2-2-.01, -.02(3) (Board of Regents rules providing that for purposes of determining whether a student is in-state or out-of-state, "[u]ndocumented aliens cannot establish domicile in Tennessee, regardless of length of residence in Tennessee").