Single Incident of Misbehavior Doesn’t Prevent TN Father from Moving

Tennessee law case summary on parental relocation in Tennessee divorce and family law from the Tennessee Court of Appeals.

SUZETTE MARIE ELDER v. SIDNEY LEE ELDER – Tennessee Relocation Law – Relocation Granted

Suzette and Sidney Elder were divorced in April 1997.  Mr. Elder (Father) received custody of their two pre-teen children.  Ms. Elder (Mother) received defined visitation rights and was ordered to pay child support.  Mother did not remarry and continued to operate a daycare center in Winchester.  Father later remarried, and he, his new wife, and their combined four children also remained in the Winchester area.

The appeal involved a post-divorce custody dispute initiated by Father accepting a job in Texas.  Father requested the Circuit Court  to permit the parties’ children to accompany him to Texas and to adjust the visitation arrangements accordingly.  Mother responded by requesting the trial court to also change custody.  The trial court declined to change the existing custody arrangement and permitted Father to move to Texas.  On this appeal, Mother disputed the denial of her petition to change custody and the approval of Father’s move to Texas.  The court of appeals determined that the record supported both decisions and, therefore, affirmed the trial court.

Father began looking for a better job because he had a larger family to support. In January 1998, after looking close to home without much success, he accepted a higher paying job in Houston as a project scheduler in the oil and gas industry.  The trial court determined that Mother had not proved that a change of custody was warranted or that moving to Texas was not in the children’s best interests.  Accordingly, the trial court permitted Father to move the children to Texas and modified the visitation arrangements to accommodate the move.  On this appeal, Mother claimed that the trial court erred by not granting her petition to change custody and by permitting Father to move the children to Texas.

A finding of a material change in the child’s circumstances is the threshold determination that a trial court must make.  If the party seeking the change of custody cannot demonstrate that the child’s circumstances have changed in some material way, the trial court should not proceed to re-examine the comparative fitness of the parents, or engage in a “best interests of the child” analysis.  Rather, in the absence of proof of a material change in the child’s circumstances, the trial court should simply decline to change custody.

The court of appeals stated that it had held frequently that remarriage alone is not the sort of material change in circumstances that will trigger a re-examination of an existing custody arrangement.  However, the changes in a child’s home environment following a parent’s remarriage may amount to a material change in the child’s circumstances if they are adversely affecting the child in some material way.

Father’s second marriage was only seven months old when the trial court conducted the hearing in this case. There was abundant evidence that the members of the new family were still adjusting to each other.  The children were vying for attention and for favored status, and the parents—particularly Father’s new wife—were being protective of their own children.  Father’s daughter and his new wife had clearly not adjusted to each other.  His new wife had slapped her stepdaughter on more than one occasion. and on another occasion had shaken her so hard that it left bruises. These incidents did not repeat themselves after Father and his new wife agreed on more appropriate ways to discipline the children.

Mother also complained about another incident when the children were caught playing with kitchen knives in the house. The evidence indicated that this was a spontaneous occurrence that was not repeated.  Father and his new wife did not condone the behavior and, in fact, punished all the children.  This single incident of misbehavior did not provide a strong enough reason to revisit a settled custody arrangement.

The court of appeals said that it was not difficult to understand Mother’s concern about how her children were fairing with Father and his new wife.  She had good cause to object to the manner in which the new wife had tried to discipline her daughter.  But as far as the record showed, similar incidents had not occurred since Father asked his new wife to follow a different course when disciplining the children.  While the appellate court did not condone the stepmother’s conduct, it declined to find that these incidents, in and of themselves, amounted to a material change in the children’s circumstances that required a reconsideration of the initial custody decision.  The court of appeals found no reason to conclude that the trial court based its decision not to change custody on the wrong legal principles or on an incorrect application of these principles to the facts of this case.

Mother took issue with the trial court’s decision to permit Father to relocate the children to Texas. She asserted that the evidence did not support the trial court’s conclusions that Father’s decision to move to Texas was not vindictive and that moving the children to Texas would not expose them to a threat of specific and serious harm. The court of appeals determined that the evidence fully supported the trial court’s decision to permit Father to move the children to Texas.

Even though the trial court did not apply the relocation statute when it rendered its decision, its findings were consistent with a conclusion that Mother failed to prove that any of the three circumstances of the statute. The evidence supported the trial court’s conclusion.  Father testified that he and his new family were “living from week-to-week.”  Because his employer was in the process of cutting back and laying off employees, he was not sure about his employment future due to his low seniority among his co-workers.  He began investigating job opportunities in the Huntsville, Alabama area because he preferred to remain in Franklin County. A Houston company offered him a job and an over 40% increase in salary. Father stated that his decision to accept the job was “strictly economical” and was motivated by his desire to provide for his whole family.  Like the trial court, the court of appeals found no reason to doubt that Father needed to increase his income to maintain the standard of living he wanted to provide for his family. Accordingly, the record fully supported the conclusion that Father had a reasonable purpose for moving.  The court of appeals agreed with the trial court’s conclusion that Mother failed to present evidence to support her claim that the children will be exposed to a threat of specific and serious harm if they accompany Father to Texas.

The court of appeals held that Mother could continue to visit the children and take part in their lives, but she could not, under the facts in the record, insist that they be kept near her.  The court of appeals affirmed the judgment.

No. M1998-00935-COA-R3-CV (Tenn. Ct. App. Sep. 14, 2001).

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 read our Tennessee Family Law Blog with more detailed cases sorted by relocation cases granted and denied.

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