TN Mom Allowed Relocate Over Objection of Dad w/out Roughly Equal Time

Tennessee parental relocation law case summary in Tennessee divorce and family law from the Tennessee Court of Appeals.  Mother allowed to relocate with child.

Rolando Toyos v. Amanda G. Hammock — Parent Relocation of Mother Granted from Memphis to Rockvale

A daughter, “E.T.”, was born to Amanda G. Hammock (“mother”) and Rolando Toyos (“father”), who were never married.  Shortly thereafter, father filed a petition to establish paternity, which a subsequent DNA test confirmed.  He then petitioned the court for visitation with the child.  Father opposed mother’s relocation and petitioned to be named the child’s primary residential parent after primary residential parent mother notified father of her intent to relocate. The trial court determined father had demonstrated a material change in circumstances, but it found the child’s best interests would be promoted by mother remaining the primary residential parent, and it allowed mother’s relocation with the child.  The Tennessee Court of Appeals affirmed in part and reversed in part.

History

The Juvenile Court Magistrate awarded custody of the child to mother and permitted father to visitation.  Among other things, the Consent Order required father, an ophthalmologist, to pay child support, to pay education expenses, to maintain health and dental insurance for the child, and carry life insurance.

In early 2010, mother sent father a certified letter stating her intent to relocate from Memphis to Rockvale.  She was pregnant and planned to wed her fiancé within a few months.  Father opposed mother’s relocation with their minor child.  In his petition, father claimed that during the 18 months he had defacto substantially equal time with the minor child.  As a result, he argued that a presumption favoring relocation should not arise.  He also argued that mother’s relocation had no reasonable purpose and that it would pose a threat of specific and serious harm to the child that outweighed the threat of harm to the child of a change of custody, and that mother’s relocation request should be denied.  Father argued that if mother was allowed to relocate, father should be named the child’s primary residential parent, as relocation was not in her best interest. Father alleged the following material and substantial changes of circumstance: 1) mother’s neglect of the child’s educational needs; 2) mother’s false allegations of sexual abuse of the child; 3) mother’s history of making false claims of sexual abuse; 4) mother’s exposure of the child to numerous boyfriends; 5) mother’s pregnancy by a man living in Rockvale and her desire to relocate there; and 6) father’s substantially equal time with the child.  Pursuant to a motion filed by father, the juvenile court temporarily enjoined mother from relocating the child from Shelby County pending trial.

Mother adamantly denied that father had exercised substantially equal time with the child, and she alleged that father did not personally care for the child during his scheduled visitation. To accommodate her requested move, mother sought to reduce father’s parenting time, but including additional summer visitation for father.

Father amended his petition, and stated that mother’s relocation had no reasonable purpose because her fiancé was a male nurse who could easily obtain employment in Memphis. Father further alleged that mother’s relocation was vindictive as it was aimed at defeating his parenting rights, and he claimed that since announcing her intent to relocate, mother took steps to reduce his parenting time that she had freely given him prior to her stated intent to relocate.

A trial was conducted in the matter over the course of 13 days. In December 2010, the Juvenile Court Magistrate found that the parents had not spent substantially equal time with the child. The Magistrate found that mother spent substantially more time with the child and that the reason for her proposed relocation was reasonable and in the child’s best interest. The Magistrate also saw no merit in father’s claim that mother’s purpose was vindictive, or that there was a threat of specific and serious harm that outweighed the threat of harm to the child of a change of custody. The child’s educational needs, the magistrate said, could be met in mother’s home of choice and that no severe emotional detriment to the child would result if she was allowed to relocate with her mother. The Magistrate dismissed father’s plea and allowed mother to relocate with the child.

In addition, the Magistrate said that mother’s intent to relocate with the child approximately four hours from this jurisdiction created a material and substantial change of circumstances that merited that court’s consideration of existing orders. But, notwithstanding father’s success in proving a substantial and material change of circumstances, all of his other claims lack merit. The court found that a change of custody would create more harm to the child than simply modifying the underlying order to reflect the change of circumstances presented by mother’s relocation and that it was in the best interest of the child that she remained in the primary custody of her mother.

After the parties failed to reach an agreement through mediation, the case went to trial. Father alleged that he mother made unfounded accusations of sexual abuse and molestation by others in an attempt to damage his reputation, as well as that of his friends and family. He claimed that his daughter’s report of being inappropriately touched by the nanny’s 12-year-old grandson was a lie by mother to damage father.  The trial court said that the proof clearly showed that father’s claims were self-serving and frivolous.

Father claimed that mother was emotionally dependent and not capable of adequately parenting the child in the absence of the support systems currently in place in father’s home, and that this support system was not available at the proposed relocation site. Father argued that he provided primary parenting for the child every other weekend and on Wednesday nights, and that he provided a nanny and had a reliable girlfriend to assist. He also had long-term employees that were willing to help if needed.  From the testimony and evidence at that point in the trial, it was clear to the trial court that father was prone to parent by proxy.

Father failed to attend any of the child’s events at prekindergarten, instead he sent a proxy. E.T.’s teacher did not know him, and he did not attend either of the two parent teacher conferences. However, the proof did show that E.T.’s mother was fully involved at the school.  Father contended that mother was emotionally unstable because of her father’s actions [in murdering her disabled brother and then committing suicide] and her family’s demise. Mother admitted to being depressed by the tragic actions of her father and the loss of her mother but denied ongoing mental health problems. No proof of any ongoing emotional instability as to mother existed in the record, other than father’s claim.  There was no proof in the record that E.T. was malnourished while in mother’s care. Nor was there proof that she went unclothed, although father took exception, stating at one point that her clothing was very inexpensive clothing that didn’t match and did not “present E.T. in a very good light.”  There was no proof that mother was totally dependent on father for a support system.

At one point in his testimony father made it clear that he didn’t know what went on over at mother’s house, but proceeded to allege that mother has boyfriends in and out of the home when the child was present. Nowhere in his testimony did he deny that he had several girlfriends since he and mother broke up, or that his girlfriends slept over when the child was present. The proof showed that father frequently used his girlfriends to help parent E.T. by providing transportation to school and doctor’s offices as well as attending school functions.  What was clear from the record, the trial court found, was that mother did have several boyfriends after her relationship with father, but did not allow those men into her home nor did she always introduce them to E.T.

The trial court struggled with father’s arguments

It was clear from mother’s fiancé’s testimony that he did everything he could to try to find a job in his field of work in Memphis.  Father insisted that mother could not keep a job, however, she was only fired from one job—working for father.

Mother’s testimony made it clear to the trial court that father did not follow the consent order when it came to joint decision-making. The evidence at trial was that he made important decisions concerning his child without any input from mother.  He sent her to a dentist with his girlfriend, he sent her to a therapist with his girlfriend, he and his girlfriend toured her school. He hired tutors, he enrolled her in extra-curricular activities—all without notice to mother.  It was clear to the trial court that father was not credible. It was also clear that he surrounded himself with employees and a girlfriend that joined in his outrage at mother. The anger in their testimony was palpable, and the court said that the anger clouded their judgment and possibly continued to do so.  Father’s expert was poisoned by that anger, destroying her credibility with the trial court. Many of the things he accused mother of doing he was actually guilty of perpetrating, not her.

The trial court then found the following material changes of circumstance: 1) father’s “anger at mother and the effect he has had on the members of his support system[;]” 2) mother’s remarriage, having given birth to a child and her desire to move more than 100 miles from Memphis to join her new husband in his home; and 3) father’s lack of educational involvement, his parenting by proxy, and his ignoring the Consent Order by making unilateral decisions regarding E.T.  The trial court employed a best interest analysis, discussing the relevant factors set forth in the Tennessee Code.  It determined that it was in the child’s best interest for mother to remain the primary residential parent.

The trial court determined that father did not spend substantially equal time with the child. It further determined that father had failed to offer any evidence that mother’s move lacked a reasonable purpose, or that the move would pose a threat of specific and serious harm to the child that outweighed the threat of harm to the child of a change of custody.  It also found that the evidence clearly demonstrated that the relocation was not vindictive or intended to interfere with father’s visitation rights.  The trial court stated that the material changes in circumstance necessitated modifications to the Consent Order.

The court required father to post a bond to secure mother’s judgment.  Father appealed and presented these issues for review:

1. Whether the trial court erred in finding that mother should remain the primary residential parent;
2. Whether the trial court erred in ruling on the relocation issue; and
3. Whether the trial court erred in striking the Consent Order and then in reinstating, sometimes altered, portions thereof.

The court of appeals explained that modification of an existing custody or visitation arrangement involved a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred.  However, to determine whether a material change in circumstance has occurred, the court should consider whether: (1) the change occurred after the entry of the order sought to be modified; (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered, and (3) the change was one that affects the child’s well-being in a meaningful way.  The presence of the word ‘material,’ the court of appeals noted, indicated that the change must be significant.  If the person seeking the change of custody cannot demonstrate that the child’s circumstances have changed in some material way, the trial court should not re-examine the comparative fitness of the parents, or engage in a ‘best interests of the child’ analysis.  In the absence of proof of a material change in the child’s circumstances, the trial court should simply decline to change custody, the appellate court said.  However, if a material change in circumstances was demonstrated, the court must then consider whether a modification in custody was in the child’s best interest.

On appeal, father conceded that mother’s remarriage, having given birth to a child and her desire to move more than 100 miles constituted a material change in circumstances. However, he disputed that the other material changes in circumstance found by the trial court were supported by the record and that such changes constitute material changes.

In her appellate brief, mother argued that father failed to demonstrate that the material changes in circumstance alleged were changes which would affect the child’s well-being in a meaningful way. Although mother did not specifically use the phrase “material change in circumstances,” in her response to father’s petition she alleged various ways that father had failed to comply with the Consent Order, and she requested that certain modifications be made to it, including its visitation provisions.

When the Consent Order was entered in 2007, both parties were single and living in Memphis.  Since entry of the Consent Order, mother remarried, gave birth to a child, and sought to relocate a significant distance from Memphis.  Additionally, despite father’s arguments otherwise, the evidence demonstrated that numerous unilateral decisions were made by father contrary to the Consent Order which required joint decision-making.

From the foregoing, the court of appeals concluded that changes occurred after entry of the Consent Order, which were not reasonably anticipated, and which affected E.T.’s well-being in a meaningful way.  Specifically, the appellate court found that father’s anger and its effect on his support system, mother’s remarriage, having given birth to a child and her desire to move to Rockvale, and his unilateral decision-making constitute material changes in circumstance. Moreover, because the Consent Order contemplated “father”—as opposed to his girlfriend or nanny—having “responsibility for caring for E.T. during his visitation days, the court of appeals held that father’s limited involvement with E.T., likewise, constituted a material change in circumstances.

Having found a material change in circumstances occurred since the entry of the Consent Order, the court of appeals held that it needed to then consider whether a change in the designation of the primary residential parent from mother to father was in the child’s best interest, utilizing the relevant factors set forth in the Tennessee Code.

The trial court considered the relevant best interest factors and it determined that mother should remain the primary residential parent.  On appeal, father argued that “the Trial Court blatantly confuses a relocation best interest analysis with a custody modification best interest analysis, as it repeatedly assumes that E .T. has relocated with mother, even before the Trial Court had (erroneously) addressed the relocation issue.” The court of appeals agreed in part.  The trial court correctly applied the modification factors as opposed to the relocation factors.  However, the trial court did, with regard to three factors, reference E.T.’s best interests upon her presumed relocation to Rockvale. The trial court erred in presuming relocation at that point; however, the appellate court considered whether modification was in E.T.’s best interest without consideration of relocation.

Father claimed that the trial court merely assumed, without proof of actual harm, that E.T. “could” suffer emotional damage from the perceived anger of father and his confidants.  The court of appeals rejected father’s argument that the trial court could not consider his work schedule in a best interest analysis even if such schedule was contemplated when the Consent Order was entered. The evidence demonstrated, as the trial court found, that mother was the more involved parent.  Moreover, the appellate court said, the evidence supported the trial court’s determination that father made numerous unilateral decisions regarding E.T.-for example, hiring a tutor, having E.T. seen by a therapist, beginning the application process to St. Mary’s school, enrolling E.T. in extracurricular activities, and taking her to see a dentist.

Overall, the court of appeals found the evidence supported the trial court’s conclusion that a modification of the primary residential parent was not in E.T.’s best interest.  The trial court found that father exhibited anger towards mother, and the appellate court found that the evidence did not outweigh against that finding.

Based upon the evidence presented, and its credibility determinations, the trial court concluded that E.T.’s best interests would be promoted by having mother remain her primary residential parent. The court of appeals, after reviewing the record and giving due deference to the trial court’s credibility determinations—saw no clear evidence to the contrary and held that the evidence fully supported this determination.

Relocation

The trial court determined that father did not spend substantially equal time with the child. It further determined that mother’s relocation was not vindictive, and that father had failed to offer any evidence that mother’s move lacked a reasonable purpose, or that the move would pose a threat of specific and serous harm to the child that outweighed the threat of harm to the child of a change of custody.  As a result, the trial court concluded that it was in the child’s best interest to allow mother’s relocation.  On appeal, father argued that the trial court erred in ruling on mother’s relocation request.  Father claimed that the relocation issue was bifurcated from the modification issue—which was tried first—and that he was denied an opportunity to be heard regarding relocation. He claimed that “the Trial Court heard no proof on the relocation issue, and it sustained multiple objections that evidence relevant only to the relocation issue should not be presented.”

The modification and relocation issues were clearly bifurcated, the court of appeals said, with modification to be heard first and relocation then addressed (if necessary).  The trial court sustained objections that evidence related to relocation should be reserved.  Father and his counsel reasonably believed they would be allowed to present relocation-specific evidence at a second hearing. However, due to the trial court’s discrediting of father’s testimony and its conclusion that a second hearing would be redundant, that hearing did not occur.  In ruling on the relocation issue after limiting the evidence to that concerning modification, the trial court effectively denied father his day in court. The court of appeals found no waiver of the relocation issue by father, as the trial court offered father the opportunity to schedule a relocation hearing only after it had announced its decision to allow mother’s relocation. Accordingly, the court of appeals vacated the trial court’s order permitting mother to relocate with E.T and remanded the case to the trial court for an evidentiary hearing on the issue of mother’s relocation

2007 Consent Order

Next, the court of appeals addressed father’s argument that the trial court erred in striking the Consent Order in total and then in reinstating some of the provisions with changes.  Father argued that after striking the order, identical provisions could not be reinstated without proof and that modified provisions could not be ordered because neither party sought such modifications either in their pleadings or at trial.

Because father’s financial obligations could be affected by resolution of the relocation issue, the court of appeals  found financial issues should be addressed, if desired by the parties, on remand.  As a result, it vacated the trial court’s “Findings and Recommendations” regarding educational costs, child support, uncovered medical expenses, health and dental insurance, life insurance, and tax deductions.

Decision–Making Authority

Next, father challenged certain decision-making authority provisions in the trial court’s “Findings and Recommendations.”  Specifically, father challenged the trial court’s grant of sole decision-making authority to mother concerning E.T.’s future including but not limited to education, non-emergency medical care, religion and extracurricular activities.  Father claimed that in her response to father’s petition for modification, mother requested only that the parties continue to exercise joint decision-making, with mother having final authority in the event of a dispute.

Like the financial matters, the court of appeals found that these “decision-making authority” provisions could possibly be affected by the trial court’s resolution of the relocation issue. Thus, it held that these provisions be addressed, if necessary, by the parties on remand. The appellate court vacated the trial court’s Findings and Recommendations regarding mother’s sole decision-making authority, and, pending further order of the trial court, it reinstated the provision for joint decision-making authority.

Visitation

Finally, father challenged certain “visitation” provisions imposed by the trial court: ordering father to enroll in parenting training, ordering father either to assist his nanny in obtaining professional counseling or to find an appropriate replacement, and prohibiting father from allowing any person of the opposite sex to reside in his home while E.T. was in his care.  The court of appeals found sufficient evidence to support the trial court’s requirement that father attend parenting training.

Father challenged the trial court’s order that he was prohibited from allowing his girlfriends from residing in his home while E.T. was in his care, apparently based upon its finding that father’s girlfriend harbored anger for mother.  Father argued that in order to prohibit the “overnight presence of a paramour,” the trial court must make a specific finding that the paramour’s presence would harm the child.  According to father, this finding was not made.  The trial court found that father’s girlfriend was angry at mother, that both her anger and her relationship with father clouded her judgment, and the court questioned her allegiance to the truth.  The trial court made no finding, however, that allowing father overnight visitation with E.T. while she or another girlfriend was present would jeopardize the child, in either a physical or moral sense. Accordingly, the court of appeals said that the trial court’s prohibition lacked a sufficient evidentiary foundation.  It vacated that provision.

For the aforementioned reasons, in a long and detailed opinion, the court of appeals affirmed in part and reversed in part.  The case was remanded for further proceedings.

No. W2011–01649–COA–R3–JV, 2013 WL 177417 (Tenn. Ct. App. Jan. 17, 2013).

See original opinion for exact language.  Legal citations omitted.

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