Posted by: K.O. Herston | July 11, 2011

Relocation and Change of Child Custody in Tennessee: In re Iyana R.W.

Facts: Mother and Father were never married but their relationship produced Child. When they split, a parenting plan was implemented designating Mother as the primary residential parent and establishing each parent’s co-parenting time. Mother eventually married a member of the military who was stationed in Colorado. Mother notified Father of her intent to relocate and filed a petition seeking permission to relocate. Father responded by filing a Petition to Change Custody. After a hearing, the trial court determined that a material change of circumstances existed and that it was in Child’s best interest to change the primary residential parent to Father. Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

The parental relocation statute, Tennessee Code Annotated § 36-6-108, was implicated here. That statute creates a mechanism for determining whether a parent who has custody of a child may relocate outside the state or more than 100 miles from the other parent within Tennessee. Because Father conceded he does not spend substantially equal time with Child, Tennessee Code Annotated § 36-6-108(d)(1) applies. The statute provides:

(1) 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, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:

(A) The relocation does not have a reasonable purpose;

(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or

(C) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

The parent opposing the relocation bears the burden of proof to establish one of these three grounds. The statute makes clear the relocation shall be permitted if the opposing parent fails to prove any of the three grounds. If the court finds one of the grounds to be present, it must determine whether or not to permit relocation of the child based on the best interest of the child.

Mother argued the trial court erred by failing to apply Tennessee Code Annotated § 36-6-108. The Court of Appeals agreed, discussing two other cases in which the Court held trial courts must make specific findings under the statute.

First, under the statutory scheme, when a parent objects to the other parent relocating with the child, a court’s first inquiry is the amount of time each parent spends with the child. While Father concedes that Mother spent substantially more time with the child, it is important for the trial court to acknowledge this fact and apply § 36-6-108(d)(1).

Because Mother was the primary residential parent at the time of the filing of the petition to relocate, the statutory presumption favored her relocation with Child unless the trial court found the relocation: (1) lacked a reasonable purpose; (2) posed a threat of specific and serious harm to Child; or (3) appeared that the parent’s motive for relocation is vindictive. The Court ruled the failure to conduct this analysis was reversible error:

We find that the trial court erred in granting Father’s Petition to Change Custody.  . . . [W]e hold that the trial court should have addressed Mother’s Petition to Relocate and the statutory factors of Tenn. Code Ann. § 36-61-08(d).

The Court then went a step further and granted Mother’s request to relocate:

[H]aving reviewed the record, we find that there is enough evidence to approve Mother’s Petition to Relocate. Mother’s marriage to a military service member prompted her decision to relocate with the child. At the hearing, Father failed to prove that Mother’s relocation lacked a reasonable purpose; posed a threat of specific and serious harm to the child; or possessed a vindictive motive. In fact, the trial court noted in its opinion that it “understood” Mother’s need to move; the court further remarked that it did not “want to hurt her relationship” with her husband. By the trial court noting that it understood Mother’s reason for the relocation, the trial court implicitly recognized that Mother’s relocation served a reasonable purpose. Further, none of the evidence in the record demonstrates how Mother’s relocation satisfied the other statutory factors. . . .

We hold that the evidence fails to overcome the statutory presumption in favor of Mother relocating with the child, and we approve Mother’s relocation to Colorado with the child. Because of the distance involved, a remand is required so that the trial court may hold an additional hearing to establish Father’s visitation.

In re Iyana R.W. (Tennessee Court of Appeals, Eastern Section, June 8, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.


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