Relocation Granted Mom and New Husband Get Jobs Out of State

Tennessee child custody case summary on relocation law in divorce.

Nove Kephart, Sr., v. Daniela F. Schwarzer Kephart

The mother and father in this Tennessee parental relocation case were the parents of two children.  Under the 2012 divorce decree, the mother was named the primary residential parent.  After the divorce, she remarried.

After a modification, the mother remained the primary residential parent, with 249 days of parenting time.  The father was granted 116 days of parenting time.

In 2015, the mother notified the father that she intended to relocate to Arkansas, where her husband had received a new job which would increase his income from $70,000 to $100,000.  She also alleged that she had received a job offer in Arkansas that would increase her income from $34,000 to $50,000.  The father filed an opposition to the relocation, and a trial was held.

A professional counselor testified that she had don assessments of the children and that it “could be” traumatic for the children to move to Arkansas.  She also testified that allocating parenting time so that the children could be with both parents would reduce this trauma.

After hearing all the evidence, the trial court allowed the relocation.  The trial court noted that there was a substantial increase in income and opportunities.  It also held that the move was not vindictive and would have no detrimental effect on the children.  The trial court also heard an issue as to the child support.  The father then appealed to the Tennessee Court of Appeals.

The appeals court first noted that the case was governed by the Tennessee parental relocation statute, and that there are different tests applied, depending on whether or not the children spend substantially equal amounts of time with both parents.  In this case, since the father was spending less time with the children, the appeals court turned to that portion of the statute.  In that case, there is a presumption in favor of allowing relocation, and the objecting parent bears the burden of proof.  In this case, the father was required to show that the relocation has no reasonable purpose, there would be a specific threat of serious harm to the child, or that the reason for the move was vindictive.  The trial court had held that the father had established none of these grounds.

The appeals court first addressed whether the move had a reasonable purpose.  The father argued that mere financial considerations were not a reasonable purpose.  But the court noted that prior cases had found that an increase in income could be a reasonable purpose, and the appeals court agreed that the increase both in income and future opportunities constituted a reasonable purpose.

The court then turned to whether the move posed a specific threat of serious harm to the children.  While the counselor expressed her opinion, she did not point to any specific evidence of any kind of serious harm resulting from the move.  For these reasons, the appeals court also agreed with the trial court that the father had not met his burden of establishing this ground for disallowing the move.

Finally, the father argued that the mother’s motive for relocation was vindictive.  Under the statute, “vindictive” is defined as being intended to defeat the non-custodial parent’s visitation rights.  The father pointed to the timing of the move, which came in the wake of bitter litigation of other issues in the case.  The mother had announced the move only two months after a new parenting plan had been entered.

But the appeals court held that the mere timing did not establish that the move was vindictive.  In this case, the court noted that the mother and her husband had purchased a new house in Tennessee shortly before the planned move, and that this was evidence that there was no vindictive motive.

For these reasons, the Court of Appeals affirmed the lower court’s ruling allowing the relocation.  The appeals court also addressed the child support issue and affirmed this ruling as well.

No. M2015-02285-COA-R3-CV (Tenn. Ct. App. Oct. 26, 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.