Parent Relocation Statute in Tennessee
Parent relocation statute in Tennessee law: parent relocation rights, parent relocation letter, non custodial rent relocation rights, and moving away with children.
Tennessee parent relocation law with its controlling state statute is triggered only when certain changed circumstances occur. These circumstances often present difficulties for parents, their lawyers, and the judges who hear these cases. In fact, many judges consider parent relocation cases to be among the most difficult to adjudicate.
Relocation will not be an issue for every family. Some divorced parents need never concern themselves with relocation modifications to child custody orders. Others will find themselves back in court over parent relocation issues, perhaps more than once.
Many parents misunderstand how Tennessee parent relocation law applies to them, whether they are Primary Residential Parents or Alternate Residential Parents trying to maintain a parenting time schedule (sometimes referred to as visitation). Indeed, this area of child custody law is very complex with plenty of potential pitfalls for the unwary.
To make matters even more challenging, the outcome of parent relocation cases is not entirely consistent. Generally, the court’s decision in a child move-away case is much less predictable than, for example, the child support modification case where parental income has substantially changed.
Relocating and modifying an existing parenting plan and child custody arrangement after divorce means learning the important requirements, step-by-step, before moving away. What does the parenting plan say about relocation?
For most parents, navigating relocation issues and planning a reasonable legal strategy to modify the parenting plan or to object to relocation is difficult. We strongly recommend that both parents obtain independent legal advice from an experienced Tennessee family lawyer.
Parents should also read the book on Tennessee Parent Relocation Law written by Memphis divorce attorney Miles Mason, Jr. This is the book that provides an overview of parent relocation law, tips for developing long-distance parenting plans, and winning strategies for and against relocation, along with many Tennessee case examples.
For additional information and updates on parent relocation law, also look to our Tennessee Family Law Blog and its parent relocation cases in general. Examples of strategies that worked for other parents can be invaluable. Take a few minutes to review case summaries where Tennessee courts either granted a parent’s relocation or denied a parent’s relocation. Yes, the court can do that.
Tennessee Parent Relocation Process Under T.C.A. § 36-6-108
After a divorce or child custody case, after custody orders are entered, there is typically a period of adjustment for parents and children. A period when everyone settles into a scheduled routine under the court-ordered permanent parenting plan. For some, adjusting to the co-parenting model of child rearing involves moving somewhere new. For others, a move is necessary because of remarriage, more children, or blended families.
Realistically, there is nothing extraordinary about either parent’s desire to move to a new home – maybe a nicer neighborhood or a more spacious house – at any time after the divorce is over. Life goes on. But when the distance is beyond merely moving from Collierville to Bartlett or Eads to Germantown, complying with the Tennessee relocation statute may be necessary.
So long as custody orders are in place, the moving parent needs to know when his or her activities could require notice to the other parent. Although we typically think of child relocation by the custodial parent, many Tennessee relocation cases involve the non-custodial parent’s relocation and its impact on parenting time, transportation expenses, and the best interests of the children.
Parent Intends to Relocate 50 Miles Away or Out-of-State
The legislative intent behind Tennessee’s parent relocation statute is, in great part, to prevent one parent from packing up and moving the child or children without the consent of the non-relocating parent and the court. The statute aims to keep the child’s best interests as the most important priority when determining whether relocation is appropriate.
More specifically, when either parent intends to relocate more than 50 miles away or intends to relocate out-of-state, then the notice requirements of T.C.A. § 36-6-108(a) must be complied with.
Be mindful that even the non-custodial parent with court-ordered parenting time must notify the non-moving custodial parent of the proposed relocation. Why? Because either parent’s moving away may affect the child’s relationship with the other parent and may affect the best interests of the child.
- What Is the Basic Relocation Notice Rule?
If either parent intends to relocate more than 50 miles from where they currently reside, or intends to relocate outside the State of Tennessee, then written notice of that proposed move must be given to the other parent. Plan ahead. The statute requires that written notice be mailed at least 60 days before the actual move occurs. Should there be an emergency situation, the court may excuse a parent’s failure to fully comply with the notice requirement. But those occurrences are rare. Best to do everything possible to comply with the law.
- What Should the Notice Say?
Under Tennessee parental relocation law, written notice must include four specific disclosures:
- A statement of the parent’s intent to move.
- The actual place where the parent proposes to relocate. How far away? To what jurisdiction?
- The reason or reasons why the parent intends to relocate. Why is the parent planning to move away?
- A statement informing the non-relocating parent that he or she has 30 days to file a petition with the court opposing the move. (Begin counting those 30 days from the non-moving parent’s receipt of notice.)
Written notice need only be a letter of correspondence from one parent to the other containing the above four statements. Written notice could also be from the relocating parent’s attorney sent to the other party.
- How Should Notice Be Sent?
In this, the relocation statute is very specific. Written notice must be sent to the non-relocating parent’s last known address by either registered mail or certified mail. That does not preclude using other means in addition to mailing, such as personal delivery. If the parent hands notice to the non-moving parent, then he or she is still required to send it by registered or certified mail.
- Objection to Parent Relocation
Once the non-relocating parent receives written notice of the proposed move, he or she has only 30 days to object. Thirty days may seem like ample time, but legal action should be swift. To protect the objecting parent’s rights, in most instances a petition must be filed with the court and a relocation hearing scheduled. In many instances, the non-relocating parent will object to the move and file a request to modify child custody.
With notice received, the parents are in a position to negotiate – with assistance from their respective attorneys – a new parenting time schedule that reasonably accommodates everyone’s needs. (The statute refers to a “new visitation schedule,” but we are talking about parenting time as set forth in the permanent parenting plan.) Relocation mediation with a professional mediator may also be very helpful in arriving at a revised visitation arrangement.
If the parents do not agree on a new visitation schedule, however, then the relocating parent must file a petition with the court requesting a change to parenting time. In this analysis, there are many factors for the court to consider, including the following:
- Availability of alternative arrangements which foster and continue the child’s relationship with and access to the other parent;
- Costs of transporting the child for parenting time (a parent’s relocation may affect child support and may lead the court to assess the costs of transporting the child for visitation); and
- Whether a deviation from the Tennessee Child Support Guidelines should be considered in light of all the factors including, without limitation, the additional costs incurred in transporting the child for parenting time.
T.C.A. § 36-6-108(b).
From there, the court must determine whether the parents actually spent an equal amount of time with the child, or not. Determining actual parenting time is discussed in more detail below.
In relocation cases, details matter. The parent considering relocation should read our selection of cases in which parental relocation has been considered by the Tennessee appellate courts and either granted or denied. Studying the cases will reveal some important patterns.
- Inadequate Notice of Proposed Relocation
What if the relocating parent provides notice, but not 60 days notice as required by law? This would be a situation where the parent has given inadequate notice of the proposed move away. As the next case illustrates, relocation law is complicated. Talk to your lawyer.
In the 2011 Tennessee case of Lima v. Lima, the mother gave the father only five-days written notice of her proposed relocation with the children to Las Vegas, Nevada. Her reason for the move was employment-related. Lima v. Lima, No. W2010-02027-COA-R3-CV (Tenn. Ct. App. 2011).
The father argued, among other things, that he received inadequate notice of her proposed relocation. Yet the mother prevailed on appeal.
The Tennessee Court of Appeals determined that the father was not prejudiced by the mother’s inadequate notice. Why? Three reasons, mainly. One, he was able to file his objection timely, before the mother left for Las Vegas with the children. Two, the trial court enjoined the mother from removing the children from Tennessee during the case. (Although the mother left the state, the injunction prohibited her from removing the children from Tennessee. Instead, the children remained with their father while the case was pending.) And three, the trial court’s decision came more than 60 days after the father received notice of the proposed relocation.
After Lima, it seems that when inadequate notice is raised in the child relocation case, the issue becomes one of whether or not the non-moving parent was actually prejudiced. If the court determines that there was no actual prejudice to the non-relocating parent, then inadequate notice is unlikely to impact the outcome of the case.
Determining Actual Substantial Parenting Time
When the reason for child custody modification is relocation, it matters which parent is the Primary Residential Parent (PRP). And it matters whether the parents have substantially equal parenting time with the child. Do the parents actually spend substantially equal parenting time with their son or daughter?
The Tennessee relocation statute differentiates between parents who actually spend substantially equal amounts of time (not precisely equal) with the child and those who do not. The question, then, is what is meant by “substantially equal”?
In Monroe v. Robinson, the Tennessee Court of Appeals held that the parents did spend substantially equal amounts of time with their child. The father had the child with him approximately 43% of the time; the mother had possession of the child for approximately 57% of the time. Not precisely equal, but substantially equal. Monroe v. Robinson, No. M2001-02218-COA-R3-CV (Tenn. Ct. App. 2003).
By contrast, in Connell v. Connell the court held that the parents did not spend substantially equal amounts of time with the child. The father had the child with him approximately 40% of the time; the mother approximately 60%. Connell v. Connell, No. W2002-01049-COA-R3-CV (Tenn. Ct. App. 2000).
These court decisions demonstrate the individuality of the circumstances in each relocation case. Neither the statute nor Tennessee case law specifically sets out what constitutes substantially equal intervals of time. Consequently, the judge must examine the particularities of the circumstances to determine whether these parents spend substantially equal amounts of time with their child. To make that determination, the court must look back and compare.
- Look-Back Period for Determination of Parenting Time
How far back does the court look when determining whether the parents spent substantially equal intervals of time with their child? The look-back period in which parenting time is compared is the 12 consecutive months immediately preceding the relocation hearing. See Kawatra v. Kawatra 182 S.W.3d 800 (Tenn. 2005).
- When Actual Parenting Time Is Substantially Equal
T.C.A. § 36-6-108(c) sets forth a situation in which parents are actually spending substantially equal intervals of time with the child. (Actual time spent does not always match precisely what was originally ordered in the parenting plan.) To determine actual time spent, the court will count the days each parent had the child with him or her over the past 12 months.
If the court finds that the parents did actually spend substantially equal amounts of time with their child, then there is no presumption in favor or against the relocation request. Instead, the court determines whether or not to permit relocation of the child based upon that child’s best interests.
The statute lists several factors which can be used to determine whether relocation would be in the child’s best interest. Some of these factors are:
- The extent to which parenting time rights have been allowed and exercised;
- Whether the PRP is likely to comply with any new parenting time arrangement once he or she is out of the jurisdiction;
- The love, affection, and emotional ties existing between parents and child; and
- The stability of the parents’ family unit.
No legal presumption exists favoring one parent (relocating) over the other (objecting) when both parents are determined to have actually spent “substantially equal intervals of time” with their child during the 12-month look-back period.
Importantly, Tennessee relocation law designates a different procedure for parents who do not spend substantially equal amounts of time with their child. To start with, there is a legal presumption favoring the relocating parent when he or she had substantially more parenting time with the child in the 12-month look-back period. In that instance, it is presumed that the parent should be allowed to relocate with the child.
- When Actual Parenting Time Is Not Substantially Equal
T.C.A. § 36-6-108(d) sets forth a relocation situation in which the parents are not actually spending substantially equal intervals of time with their child.
When the relocating parent is found to have actually spent substantially more time with the child in the 12-month look-back period, then the move will not be prohibited unless one of the following three grounds for further court analysis exists:
- There is no reasonable purpose for the move; or
- There is a threat of specific and serious harm to the child if the move occurs; or
- The motive for the move is vindictive.
If any of these three grounds are found, then the court must conduct the best interests analysis under T.C.A. § 36-6-106(a)(1-15).
A finding that one or more of the three grounds exists will not result in denial of the move, at least not directly. Instead, the finding puts in place the court’s obligation for further inquiry, circling back to the child’s best interests analysis. See T.C.A. § 36-6-108(e). This is the same best interests analysis applied when the parents actually spend substantially equal time with their child during the 12-month look-back period.
No Reasonable Purpose for Relocation
Many reasons for relocating will be found reasonable. The parent objecting to removal of the child has the burden of proving that there is no reasonable purpose for the relocation. T.C.A. § 36-6-108(d)(1). See Redmon v. Redmon, No. W2013-01017-COA-CV (Tenn. Ct. App. 2014).
What is a reasonable purpose for relocation? In Rudd v. Gonzalez, the Tennessee Court of Appeals held that job retraining is a reasonable purpose for the custodial parent’s relocation with the children. Citing an earlier case, the court noted that for the relocation to be reasonable under Tennessee law, the purpose of the move should be “substantial when weighted against the gravity of the loss of the non-custodial parent’s ability ‘to participate fully in their children’s lives in a more meaningful way.’ ” Rudd v. Gonzalez, No. M2012—02714-COA-R3-CV (Tenn. Ct. App. 2014).
What about moving to live with a new spouse? In Thorneloe v. Osborne, the appellate court held that the mother’s proposed move to Wisconsin to live with her new husband is not, in and of itself, a reasonable purpose for relocating the children. Thorneloe v. Osborne, No. E2012-02004-COA-R3-CV (Tenn. Ct. App. 2013).
Lastly, in the move-away case of Carman v. Carman, the children’s mother wanted to relocate with the children to Canada to reside with her new husband. The Tennessee appellate court held that, although it was certainly reasonable for the mother to want to be with her new spouse, it is not always reasonable for the children to be relocated away from their father. This case involved a move of approximately 2,700 miles, a great distance from Tennessee.
How does the court balance the equities between mother and father in these cases? In Carman, the “Mother’s desire to live with [her husband in Canada] must be ‘weighed against the gravity of loss’ of Father’s ability to ‘participate fully’ in the lives of his seven minor children ‘in a more meaningful way.’” Carman v. Carman, No. M2011-01265-COA-R3-CV (Tenn. Ct. App. 2012).
Threat of Specific and Serious Harm to the Child
Tennessee’s parent relocation statute details what “specific and serious” harm to a child may entail. Although not by way of limitation, T.C.A. § 36-6-108(d)(2) cites the following relocation circumstances as creating a specific, serious harm to the child:
(A) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(B) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(C) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(D) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(E) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state, and such support system is not available at the proposed relocation site; or
(F) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, that does not have an adequately functioning legal system or that otherwise presents a substantial risk of specific and serious harm to the child.
In a relocation hearing or trial, a parent may seek to introduce expert witness testimony for or against moving away with the child. An independent child custody evaluator, for example, may testify as to the potential psychological impact of relocation on the child. Expert testimony can be very compelling, especially when the objecting parent alleged “specific and serious” harm to the child should relocation be permitted.
Parent’s Vindictive Motive for Relocation
The question of what is a vindictive motive for relocation is often raised by the objecting parent. A vindictive motive is one aimed at intentionally deterring or defeating the other parent’s visitation rights. What is not a vindictive motive was clarified in the Rudd v. Gonzalez case cited previously.
In Rudd, the mother had filed a tort lawsuit against the children’s father. On appeal in the move-away case, the appellate court affirmed the trial court’s holding that the mother’s separate tort lawsuit against the father was not relevant as evidence of vindictive motive for purposes of Tennessee relocation law.
Generally, a court may be unlikely to conclude that the relocating parent has a vindictive motive if a legitimate basis is offered as the reason for relocating.
Special Relocation Concerns of Military Parents
Military parents have yet another concern when relocation is objected to. Active duty and deployment can prevent a service member from actually spending substantially equal time with a child during the 12-month look-back period. (For information on military divorce, see Military Divorces in Tennessee: Answers to FAQs.)
Under current law, the consequences of military service interfering with the service member’s ability to spend substantially equal parenting time with the children does not make a difference in the court’s analysis on the “actual substantial parenting time” question.
In the case of Lower v. Lower, the father had been stationed at Fort Campbell for the past 14 years. The Tennessee Court of Appeals recognized the father’s service to his country, but did not adjust the 12-month look-back period. The father had “simply failed to exercise substantially equal intervals of time” with his child. Lower v. Lower, No. M2013-02593-COA-R3-CV (Tenn. Ct. App. 2014).
Custodial Relocation and Child Custody Modification
Consider the case of In re Haven. In Haven, the father petitioned the court for modified orders. In her answer to the petition, the mother sought to relocate with the children. The court modified the permanent parenting plan, changing the father to Primary Residential Parent (PRP) and mother to Alternate Residential Parent (ARP). In re Haven, No. E2010-01902-COA-R3-JV (Tenn. Ct. App. 2012).
Relocation can form sufficient basis for modification of custody orders and the parties’ permanent parenting plan when the parents have equal parenting time. But what if the parents do not have substantially equal parenting time? In Haven, the parent with substantially more parenting time can relocate against the wishes of the objecting parent so long as there is no “spiteful motive, lack of reasonable purpose, or risk of harm” to the children.
Relocation Pending Appeal Is Permitted
If relocation is permitted and the objecting parent files a timely appeal, then the prevailing party may still relocate with the child while that appeal is pending. See Goddard v. Goddard, No. E2011-00777-COA-R3-CV (Tenn. Ct. App. 2012).
Visitation and Parenting Time Costs
When relocation is allowed – whether more than 50 miles away or out-of-state –then the first cost matter for the court to consider is whether the child support order should be modified. Once the court approves the PRP’s relocation with the child, it must then examine any additional costs placed on the non-moving parent in order for him or her to spend parenting time with the child. Any child support modification means a change (increase or decrease) in the monthly amount the ARP is ordered to pay.
- Cost of Exercising Visitation
Who will pay the increased expenses associated with the ARP’s exercise of parenting time after relocation? The court should assess the costs of visitation and may deviate from the Tennessee Child Support Guidelines to allow the ARP to maintain a meaningful parent-child relationship through visitation. T.C.A. § 36-6-108(f).
Consider this example: If the mother relocates with the child, then she may be ordered to cover the father’s increased parenting time expenses. That is what happened in Dahl v. Young where the mother was ordered to cover much of the father’s “cost of exercising visitation” as a condition of relocation. Dahl v. Young, No. M2013-02854-COA-R3-CV (Tenn. Ct. App. 2015).
- Attorneys’ Fees
In a relocation case, either parent may seek to recover his or her reasonable attorneys’ fees, along with other litigation expenses. Any such award of attorneys’ fees, however, is discretionary with the judge. T.C.A. § 36-6-108(i).
Relocation Statute Applies Retroactively to Child Custody Orders
Many parents are under the mistaken belief that if their divorce was final before Tennessee’s parent relocation statute became law, it must not apply to them. That is not so. The Court of Appeals held in the case of Caudill v. Foley that the relocation statute does indeed apply retroactively to custody orders issued before the statute became law.
Furthermore, the relocation statute applies retroactively even in cases where the parents had a Marital Dissolution Agreement and were divorced before the statute was enacted. Caudill v. Foley, 21 S.W.3d 203 (Tenn. Ct. App. 1999).
Relocation Law Does Not Apply in Pending Divorce or Custody Case
Tennessee’s parent relocation statute only applies to post-divorce relocation or post-custody case relocation. In other words, there must be an existing parenting plan, an existing child custody order, in place before one parent’s proposed move-away triggers the relocation statute. The rule is fairly simple. The relocation statute only applies after the divorce is final and after custody orders have been entered. See Nasgovitz v. Nasgovitz, No. M2010-02606-COA-R3-CV (Tenn. Ct. App. 2012).
All of the situations raised with parent relocation present complicated legal challenges. They also make parenting more difficult. Whatever the outcome of the legal issues in your relocation case, always remember that children do better when their parents work together to make the best of an otherwise bad situation.