Mom Can Relocate, Dad Failed to File to Object Before Deadline

Tennessee child custody case summary on parental relocation.

The mother and father in this Tennessee parental location case were the parents of a son born in 2002. The parenting plan entered after their 2005 divorce named the mother as the primary residential parent, but gave both parents roughly equal parenting time.

In 2014, the mother notified the father of her intent to relocate to North Carolina, since she had been accepted into a physician assistant studies program. The letter notified the father that he had 30 days to file an opposition to the relocation.

The father filed a petition opposing the relocation, but he filed in 35 days after he received the mother’s letter. In the petition, he alleged that the relocation would not be in the child’s best interest. The mother filed a counter petition, but she did not raise the issue of the petition being filed late. In a pretrial brief submitted a few months later, she argued for the first time that the petition should be dismissed because it was filed after the 30-day deadline.

The trial court first ruled that the late filing should have been raised as an affirmative defense, and that the mother had waived the issue by not raising it in a timely manner. The court went on to find that the move was not in the child’s best interest, and modified the parenting plan to name the father the primary residential parent if the mother went through with the move. The mother then appealed to the Tennessee Court of Appeals.

The appeals court started by looking at the Tennessee parental relocation statute, which requires the parent opposing the move to file a petition within 30 days of receiving notice of the relocation. The father argued that waiver is specifically listed as an affirmative defense in the rules of civil procedure, and must be raised immediately in a responsive pleading.

The court reviewed the statute and earlier opinions construing it, and concluded that the 30 day limit was part of a “rigid, mandatory structure,” and that the legislature intended that the time limit restricted the trial court’s ability to interfere unless the petition was filed in time. For that reason, the court concluded that the mother was not required to raise the issue as an affirmative defense. Since the petition had been filed after the 30 day period expired, the court concluded that the petition should have been dismissed, and the mother allowed to relocate.

For these reasons, the Court of Appeals reversed the trial court’s judgment without reaching the issue of whether the move was in the child’s best interest.

No. M2015-01475-COA-R3-CV (Tenn. Ct. App. May 19, 2016).

See original opinion for exact language. Legal citations omitted.

To learn more, see Tennessee Parent Relocation Statute Law.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.