PARENTAL RELOCATION

PARENTAL RELOCATION: CLARIFICATION OF THE STATUTE AND ITS APPLICATION

The “Tennessee Parent Relocation Statute” or “move away law” can be found at Tennessee Code Annotated §36-6-108.  This law comes into play when one parent wishes to relocate the minor children outside the State of Tennessee, or more than fifty (50) miles from the other parent’s home.  The statute sets out what is required when a parent wants to leave Tennessee with minor children.

Strict compliance is required with the provisions of the act. Failure to comply may lead to a petition alleging contempt of court, a petition to modify parenting time based upon the moving party failing to follow the court’s orders, or custodial interference which is a criminal charge. All of these outcomes are needless because the statute is a well laid out framework which provides a way for compliance by both primary and no-primary parent. The Parental Relocation statute provides the moving parent must give notice of the move. The relocating parent is required to send written notice to the other parent no later than sixty (60) days before the move. The notice should include the following:

  1. A statement of the parent’s intent to move.
  2. A statement that describes the place where the parent proposes to relocate including, the distance from the current home.
  3. A statement detailing the reason or reasons why the parent intends to relocate.
  4. A statement informing the non-relocating parent that he or she has 30 days to file a petition with the court opposing the move. (The date of receipt triggers the calculation of the 30 day period for the non-moving parent.)

Upon receipt of the notice the other parent has thirty (30) days after receiving the notice to file a Petition in Opposition to Move with the court. If no objection is filed with the court within thirty (30) days, the parent may move with the minor child. If an objection is filed, then the court must decide whether the move is permitted. The court uses a “best interest” of the child analysis.

When the reason for child custody modification is relocation, it matters which parent is the Primary Residential Parent .Also, it matters whether the parents have “substantially equal “ parenting time with the child. The Tennessee relocation statute differentiates between parents who actually spend “substantially equal” amounts of time (not precisely equal) with the child and those who do not. Consequently, the court analyses follows two paths:

  1. Parents who spend substantially equal amounts of time with the child face no legal presumption in favor or against the request for relocation. The court determines looks at whether the relocation of the child is in the child’s best interest based on the following statutory factors:
    • The extent to which visitation rights have been allowed and exercised
    • Whether the primary residential parent, once relocated, is likely to comply with any new visitation arrangement
    • The love, affection and emotional ties existing between the parents and child
    • The stability of the family unit of the parents
  1. Parents who do NOT spend substantially equal amounts of time with the child face a legal presumption in favor of the move, but the court looks to see if the purpose of the relocation has a reasonable purpose, would pose a threat of serious or specific harm to the child, or the relocating parent had a vindictive motive to interfere with the other parent’s parenting time.  If the court finds any factor, the court will then determine whether the relocation is in the child’s best interest based on the following:
    • The extent to which visitation rights have been allowed and exercised
    • Whether the primary residential parent, once relocated, is likely to comply with any new visitation arrangement
    • The love, affection and emotional ties existing between the parents and child
    • The stability of the family unit of the parents.

The question, then, is what is meant by “substantially equal” time? The determination of “substantially equal” will be decided by each trial court and is variable between all local courts. The statute and the case law does not provide a definition of “substantially equal”. Consequently, the judge must examine the particularities of the circumstances to determine whether these parents spend substantially equal amounts of time with their child. To make that determination, the court must look back and compare. We do know the method of determining the facts to support the determination. Pursuant to T.C.A. § 36-6-108(c), the court must count the days for the last 12 months to determine the days spent with the child. The parenting plan may differ with the actual time spent and frequently does. If the court finds that the parents did actually spend substantially equal amounts of time with their child, then there is no presumption in favor or against the relocation request. Instead, the court determines whether or not to permit relocation of the child based upon that child’s best interests.

The statute lists several factors which can be used to determine whether relocation would be in the child’s best interest. Some of these factors are:

  1. The extent to which parenting time rights have been allowed and exercised;
  2. Whether the primary residential parent likely to comply with any new parenting time arrangement once he or she is out of the jurisdiction;
  3. The love, affection, and emotional ties existing between parents and child; and
  4. The stability of the parents’ family unit.

When the relocating parent is found to have actually spent substantially more time with the child in the 12-month look-back period, then the move will not be prohibited unless one of the following three grounds for further court analysis exists:

  1. There is no reasonable purpose for the move; or
  2. There is a threat of specific and serious harm to the child if the move occurs; or
  3. The motive for the move is vindictive.

The Court’s finding of any of these grounds triggers the Court’s duty to use the best interest analysis under T.C.A. § 36-6-106(a)(1-15). Moreover, a finding that one or more of the three grounds exists will not result in denial of the move, at least not directly. Instead, the finding puts in place the court’s obligation for further inquiry, circling back to the child’s best interests analysis. See T.C.A. § 36-6-108(e). This is the same best interests analysis required to be used when the parents actually spend “substantially equal” time with their child during the 12-month period referred to earlier.

When family circumstance require you to consider a move after you have been involved in a matter where a family court has issued an order setting for parenting time, you must comply with the Tennessee Parental Relocation Act. Contact a family lawyer first and plan your notification of the move given to the other parent. Planning and compliance with the act can make the prospect of relocation less daunting, less expensive and more successful.