Dad Fails to Carry Legal Burden Tennessee Mom Can’t Move Away 6 Hours
Tennessee parental relocation law case summary in Tennessee divorce and family law from the Tennessee Court of Appeals. Mother allowed to move away with children.
Bulick v. Thompson – Tennessee parent relocation case – relocation granted
The Father filed a Petition in Opposition to Relocation with the Minor Child. The trial court found that parents did not exercise substantially equal parenting and allowed the mother to move with the minor child. The father appealed.
Annette Bulick (“Mother”) and Richard Thompson (“Father”) were divorced in 1996. The couple had one child. The Marital Dissolution Agreement (“MDA”) provided that it was in the best interest of the minor child for the Mother to have the final decision making authority for the child’s care, supervision, and guidance on a daily basis after consulting with the Father. The MDA also said that Mother had the physical custody of the minor child and had exclusive care, custody and control of the minor child. The Father was allowed reasonable and liberal visitation rights.
The time designated in the MDA equaled 105 nights per year with Father (28% of the parenting time) and 260 nights (71.3%) with Mother. This schedule was exercised from the time of their divorce in 1996 until approximately 1999 or 2000, when the child started first grade. At that time, they altered the schedule to allow Father additional time with the child. The parties agreed that, during the extended visitation, Father was spending five out of 14) nights every two weeks with the child (35.7% of the time with the child to Mother’s 64.3%).
In February 2003, Father relocated to Mississippi, where he was remarried and had two additional children. Mother also remarried and had two additional children with her current husband. Mother’s current husband received a promotion in his job which required him to relocate from Memphis to White Pine, Tennessee. White Pine is a six-hour drive from Memphis. Father admitted that Mother told him of her plans to relocate prior to telling their minor child. After this, Father, Mother, and their current spouses all told the minor child together of the relocation. Mother sent a relocation letter to Father pursuant to the statutes in May 2003.
Father opposed the relocation and filed an objection. He also asked the court to appoint a Guardian Ad Litem for the child. The trial court order the couple to go to mediation. At the same time, Mother filed her response and asked for and increase in child support. She also filed her proposed Permanent Parenting Plan. Father asked the court for an injunction to stop Mother from moving until the Guardian Ad Litem was appointed.
The trial court found that Father did not spend substantially equal parenting time with the minor child and denied his request for a Guardian Ad Litem. The injunction was lifted and Mother was allowed to move the child to her new location pending a final hearing in the case. At that hearing, Mother was permitted to relocated permanently. Father appealed and asked the Tennessee Court of Appeals whether the trial court erred in its preliminary determination that the parties did not spend “substantially equal” time with the minor child. as part of this argument, Father said that the trial court erred by its insistence on a numerical percentage rather than upon a reasonable statutory construction of “substantially equal.”
Mother raised one additional issue in her brief. She claimed that Father entered the appeal with unclean hands, and that his request for relief should be denied. Mother claimed that Father failed to provide notice of his relocation to Olive Branch, Mississippi, which was required by the statutes. Unclean hands means that a person who comes into a court asking for its assistance must do so with clean hands—that he has himself been guilty of unconscionable, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud, he cannot make his claim.
The court of appeals said it was without question that Father failed to comply with the statute. However, the court said, even if it held that Father’s omission was unclean hands (which it did not), the ultimate issue in this case was the welfare and best interest of the child. The court said that the trial court was proper in moving forward despite the allegation of unclean hands.
In examining the relocation of a minor child, the court of appeals said that the first finding that the trial court must make was the relative amount of time each parent actually spends with the child. Depending on the answer to that question, one section of the Relocation Statute governs where parents are actually spending substantially equal amounts of time with the child. In that instance, the court is to make its determination based upon the best interests of the child and the factors set out in the statute. Another subsection applies if the parents are not actually spending substantially equal intervals of time with the child, and the parent spending the greater amount of time with the child proposes to relocate with the child. This section directs the trial court to allow the relocation unless one or more of the three criteria is met.
The appellate court explained that courts in this state have not provided bright-line rules for determining whether parents are spending substantially equal custodial time with their children. It cited another court of appeals decision where the factors to be considered were outlined:
- the terms of the applicable custody and visitation orders;
- the number of days each parent has actually spent with the child or children;
- whether the parents are using the full amount of residential time provided them;
- the length of the period during which the comparison of residential time is being made (12 months is preferred); and
- the particular situation of the parent.
Since no concrete parameters were outlined in the relocation statutes or in the case law, the appellate court dismissed Father’s argument by holding that the trial court did not err in basing its decision on the numbers. In addition, it held that the trial court did not abuse its discretion in considering the numerical values. Nor could the court of appeals make the conclusion that the evidence weighed against the trial court’s finding that Father and Mother do not exercise substantially equal parenting time with the child.
Father did not carried his burden of proof under the statute to prohibit Mother from relocating. The trial court did not err in allowing that relocation.
Father contended that the trial court erred in denying his Motion for Appointment of Guardian Ad Litem to represent the child. The court of appeals disagreed. Based on the trial court’s ruling that the parents were not spending substantially equal parenting time with the child, it did not reach a best interest analysis. Had the trial court properly held that the parties were spending substantially equal parenting time with the minor child, then the trial court may have, in its discretion, appointed a Guardian ad Litem to aid the court in its best interest analysis. However, the fact that the trial court did not reach this analysis under the statute, the fact that there were no allegations of abuse or neglect, and the fact that there was no evidence that the relocation would substantially harm the child indicates that the trial court did not abuse its discretion in declining to use a Guardian ad Litem in this matter.
2005 WL 123502 (Tenn.Ct. App. 2005).
See original opinion for exact language. Legal citations omitted.
To learn more, buy Miles Mason, Sr.’s book, Tennessee Parent Relocation Law, available on Amazon and Kindle, see Tennessee Parent Relocation Statute Law | Modifying the Parenting Plan, and our Tennessee Family Law Blog with more detailed cases sorted by relocation cases granted and denied.
Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including contested relocation matters.
