Tennessee Parent Relocation Granted | Determining Parenting Time
Kuwatra is arguably Tennessee’s leading and most important decision on parenting time disputes for relocation cases. Tennessee law case summary on parental relocation in Tennessee divorce and family law from the Supreme Court of Tennessee.
In April 2001, Neelam Kawatra, the mother, and Sunil Kawatra, the father, were divorced. Their marital dissolution agreement (MDA) provided for joint custody of their minor daughter, and the mother was designated primary residential parent. When the father learned from the mother that she had remarried and wanted to move to California with their child, he filed his opposition to this. The trial court found that the parties were spending substantially equal amounts of time with the child, so it conducted a best-interest analysis of the situation and concluded that the mother could not relocate with the child.
After the Tennessee Court of Appeals concluded that the parties did not spend substantially equal time with the child and ruled the mother should be permitted to relocate with the child, the case went to the Supreme Court of Tennessee.
If the trial court determined that the parents were spending substantially equal intervals of time with the child, there should be no presumption for or against the move with a child. In such cases, the court must determine whether relocation is in the child’s best interests. The Supreme Court of Tennessee explained that the approach would be different if the parents were not actually spending substantially equal amounts of time with the child. If the parent spending more time with the child wanted to relocate with the child, Tennessee’s Supreme Court said that the court should permit it unless it finds that the relocation fails to have a reasonable purpose, the relocation poses a threat of serious harm to the child that outweighs the threat of harm that a change of custody would pose to the child, or the parent has a vindictive motive for relocating.
The Tennessee Supreme Court said that if one or more of these grounds exist, the court must determine whether relocation is in the child’s best interests. According to the Supreme Court’s calculations, the father and mother’s parenting time was a precise 35.775/64.201 percent of the time. The trial court, however, reasoned that only the time spent providing direct care was what mattered. After the trial court deducted the 1,187 hours the child had been in school from its previous calculations, it found that the child had been under the father’s direct care for 41.41 percent of the time and that the mother had done so for 58.59 percent of the time. Based on this calculation, the trial court ruled this substantially equal time and conducted the best-interest analysis. The trial court found that the mother could not relocate with the child to California.
However, the court of appeals held that the trial court erred in excluding the hours the child spent in school from its calculation of the total time spent. The intermediate appellate court found that the father was spending 36 percent of the total 8,760 hours in a year with the child, concluded that this was not substantially equal time, applied the best interests test, and permitted the relocation.
On its review of the case, the Tennessee Supreme Court noted that the applicable statute did not define what constituted substantially equal intervals of time but concluded that the time the child was attending school should not be used to reduce the total number of hours available for computation. It reasoned that the responsibilities of a parent do not end when a child is asleep, at school or day care, or otherwise out of the parent’s presence.
In addition, the Supreme Court wrote that the use of hours as the sole basis for computing the time each parent spent with the child did not provide the trial court with the flexibility it needed to consider the circumstances of each case. Instead, time actually spent with each parent should be computed in units of a day.
To determine the number of days to credit to each parent, the Supreme Court explained that the trial court should first examine the provisions of the residential schedule and then consider additional time each parent spent with the child not reflected in the residential schedule. If either parent violated the terms of the residential schedule by interfering with the other parent’s time with the child, the trial court should make any necessary adjustments to reflect the time the child should have been in the care of the other parent.
To allocate a day to one parent when both parents claim credit for that day, the trial court should examine:
- the hours each parent actually spent with the child on that day;
- the activities in which each parent engaged with the child;
- the resources the parent expended on the child’s behalf during that time period, including the costs of meals or any other costs directly related to that parent’s care and supervision of the child; and
- any other factor the trial court deems relevant.
After computing the number of days allocated to each parent, the trial court must determine the number of months to use in comparing the time that each parent spent with the child. The use of a short comparison period could exaggerate the difference in the amount of time each parent was spending with the child. The Supreme Court therefore concluded that when the circumstances permitted, the comparison period should be the twelve consecutive months preceding the relocation hearing.
In the Supreme Court’s review of the record, it thought that the visitation orders, the child’s schedule for the 2002–2003 school year, and a calendar dating from June 2002 to May 2003 supported the parties’ stipulation that 138 days should be credited to the father. Based on this stipulation, the court concluded that the father’s 37.8 percent of the time with the child was not substantially equal to the mother’s 62.2 percent. In light of this, the high court was bound to determine whether the mother should be permitted to relocate with the child. It wrote that the trial court erred in relying solely upon an hourly unit of time and in excluding the time the child spent in school from the total parenting time. The mother was allowed to relocate with the child.
182 S.W.3d 800 (Tenn. 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 read our Tennessee Family Law Blog with more detailed cases sorted by relocation cases granted and denied.
The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation. Download our free e-Book,Your First Steps: 7 Steps Planning Your Tennessee Divorce. A Memphis divorce lawyer from the Miles Mason Family Law Group can help. To schedule your confidential consultation, call us today at (901) 683-1850.
