Facts: The parties divorced after 16 years of marriage. By agreement, Mother was named the primary residential parent and Father received 122 days of visitation each year.
A little over a year later, Mother sent Father a notice of relocation announcing her intention to relocate to California so she could attend school to become a marine biologist. Father filed a petition opposing Mother’s proposed relocation and requested that he be named the primary residential parent.
Prior to the trial, Mother married a man she had been dating who lives in California.
At trial, Father introduced testimony from an expert witness who testified:
I believe it would cause her substantial emotional harm to move to California. Tennessee is her home. Her father is here. Her friends are here. Her school is here. She has established real — her teachers, her brother, real connections with people that, in essence, she would have to give up for long extended periods of time if she were to move to California.
Largely relying on the expert testimony, the trial court found it was not in the child’s best interest to relocate to California because of the specific threat of serious harm.
On Appeal: The Court of Appeals affirmed the trial court.
When divorced individuals have children and the primary residential parent desires to relocate more than one hundred miles from the other parent within the state, the relocating parent is required to notify the other parent. The other parent can then choose to file a petition within thirty days opposing the removal of their child by the relocating parent. If such a petition is filed, the court is to consider certain factors to determine whether the relocating parent should be permitted to relocate with the child. Tennessee Code Annotated § 36-6-108(d)(1) provides as follows:
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.
If a court finds one or more of the grounds specified above, the statute then directs the court to make a best interest determination.
After reviewing the trial court record, the Court found:
In this case . . . Father presented affirmative evidence in the form of expert testimony that the move would pose a specific threat of serious harm to the child if she relocated to California with Mother. Mother did not object to Father’s expert at trial, and she had ample opportunity to cross examine her. Moreover, Mother did not retain an expert to testify that relocating to California would not pose a threat of specific and serious harm to the child, as she could have done. . . .
Reviewing all the evidence before the trial court, we do not believe the evidence preponderates against the court’s finding that the parties’ child would suffer a specific and serious harm as a result of relocating to California and that the harm is significantly more involved and serious than the normal temporary unhappiness and adjustment associated with most moves for children.
We now turn to the court’s finding that it is not in the child’s best interest to relocate to California. Evidence was presented that the child is attached to her older brother, who testified that he is close with his sister and that he intends to remain in Father’s house even after high school. There was also evidence that the child gets along well with Father’s current wife and her two sons. Both Father and Father’s current wife testified about how they all enjoy spending time together and how well everyone gets along. Taking into consideration the expert’s testimony together with the other evidence presented at the hearing, we conclude the evidence does not preponderate against the trial court’s finding that if Mother relocates to California, it is in the child’s best interest to change the primary residential parent from Mother to Father rather than to relocate the child to California.
The relocation was denied. The parenting plan was modified to declare Father the primary residential parent.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.