Parental relocation cases can be some of the most difficult custody cases to litigate. It is important to advise your clients properly regarding the statutory requirements of a relocation case. Following is a basic overview of parental relocation in Tennessee.
Parental relocation cases are controlled by Tenn. Code Ann. § 36-6-108. This statute applies to any parent who is spending intervals of time with a child that desires to relocate outside of the state or more than 50 miles from the other parent within the state.
Pursuant to the statute, the parent desiring to relocate must send a notice to the other parent by registered or certified mail. It is important to note that the notice shall contain the following: (1) a statement of the relocating parent’s intent to move; (2) the location of the proposed new residence; (3) the reasons for the proposed relocation; and (4) a statement that the other parent may file a petition in opposition to the move within 30 days of the notice.
Under the statute, if no petition in opposition is filed within 30 days, the parent proposing relocation shall be permitted to do so. The Tennessee Court of Appeals has strictly construed this language, so it is essential that a client file within 30 days of receiving the notice of proposed relocation.
In Rutherford v. Rutherford, 416 SW3d 845 (Tenn. Ct App. 2013), the Tennessee Court of Appeals reversed a trial court’s order that denied the mother’s request to relocate. The issue was whether or not she should be allowed to relocate without further court intervention because the father filed his petition 33 days after he received notice of her intent to relocate. The court of appeals framed the issue as follows “Whether the statute mandates or simply permits a parent who wishes to oppose relocation to file a written petition in opposition within thirty days of receipt of the relocation notice.” Id. at 850. The Court of Appeals held that the statute is mandatory and allowed the mother to relocate.
Tenn. Code Ann. § 36-6-108 has two distinct tracks which can be followed. The tracks are differentiated by the amount of parenting time exercised by the parties. Specifically the question is, do the parents actually spend substantially equal intervals of time with the children? If the answer is yes, then the court determines whether or not to permit the relocation of the child based on a best interest analysis pursuant to Tenn. Code Ann. § 36-6- 106(a)1-15.
If the answer is no, said parent shall be permitted to relocate with the child unless the court finds: (1) the relocation does not have a reasonable purpose; (2) the relocation would pose a threat of harm to the child that outweighs the threat of harm to the child of a change of custody; or (3) the parent’s motive for relocating with the child is vindictive, intended to deter visitation rights of the non-custodial parent.
In this situation, the non-moving party has the burden of proof to show one of those three factors applies.
If your client was not awarded substantially equal parenting time in the divorce, it will likely be much easier for the opposing party to relocate. Unfortunately, the courts have not been able to give us a specific number that equates to “substantially equal intervals of time.”
Based on previous appellate decisions, a parent exercising 40 percent of the time with the children or less is not considered to be spending substantially equal intervals of time with the children. Kawatra v. Kawatra, 182 SW3d 800 (Tenn. 2005); Collins v. Goode, 2004 WL904097 (Tenn. Ct. App.); Heilig v. Heilig, 2015 WL365948 (Tenn. Ct. App. June 15, 2015)
Conversely, the court of appeals has affirmed a trial court’s finding of substantially equal intervals of time when the non-relocating parent exercised 43 percent (157 days) of the parenting time with the children. Monroe v. Robinson (Monroe), 2003 WL132463 (Tenn. Ct. App.)
The court’s decision on whether the parties are spending substantially equal intervals of time with the children does not rest solely with the provisions of the permanent parenting plan or visitation order. This statute specifically includes the term “actually.” In Lower v. Lower, 2014 WL5089346 (Tenn. Ct. App. October 8, 2014), the parties entered into a parenting plan that allowed each parent to exercise approximately 182.5 of visitation. The father was a member of the armed services which caused him to miss 44 days of parenting time in 2010 and 2011 and 73 days of parenting time in 2012 due to training and deployment obligations. The court of appeals found that the father was not actually spending substantially equal intervals of time with the children and analyzed the mother’s request to relocate under the reasonable purpose, substantial harm, or vindictive motive track and allowed the relocation. Joshua L. Rogers