Facts: Mother and Father, parents of two children aged 10 and 7, divorced. Mother was designated the primary residential parent. Father, who lived 75 miles away, received 100 days of parenting time.
Years later, both parties remarried. Mother’s new husband lived in Wisconsin. Mother notified Father of her intent to relocate the children to Wisconsin, which relocation Father opposed.
After the trial, the trial denied Mother’s request to relocate the children, specifically finding that the proposed relocation did not have a reasonable purpose and was not in the children’s best interest.
On Appeal: The Court of Appeals affirmed the trial court.
Tennessee Code Annotated § 36-6-108, also known as the parental relocation statute, provides, inter alia, that if a parent “desires to relocate outside the state or more than fifty (50) miles [NB: the statute said 100 miles at the time of trial] from the other parent within the state,” the relocating parent must send notice to the other parent and seek court approval of the relocation if the other parent objects.
As relevant to this case, Tennessee Code Annotated § 36-6-108 provides:
(d)(1) If the parents are not actually spending substantially equal intervals of time with the child [which the parties stipulated was the situation here] 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.
Mother contended that the evidence established a reasonable purpose for her relocation with the children, including (1) potentially higher income for Mother in teaching positions in Wisconsin, (2) a pledge of financial support from her new husband, (3) “better housing” in an “affluent” area, (4) greater family support system, (5) better educational opportunities for the children, and (6) a loving family environment with her and her new husband.
Father asserted that the relocation lacked a reasonable purpose because (1) there is no valid economic purpose for the move, (2) relocation will cause an abandonment of the children’s family support network in Tennessee, (3) Mother’s new marriage, only six months old, has “shallow roots,” and (4) Mother’s proffered reasons for relocation are insufficient when weighed against the gravity of Father’s inability to participate fully in the children’s lives.
After examining the trial court record, the Court discussed each specific argument and agreed with Father. Here are some examples:
Mother was employed as a teacher with Kingsport City Schools, earning in excess of $42,000 per year. By her estimate, she could earn an additional $5,000 to $8,000 per year as a teacher in Wisconsin. The proof, however, showed that the cost of living was higher in that area as well….
[A]lthough Mother claimed that she could rely upon [her new husband] for financial support, the proof demonstrated otherwise. The trial court found that the Marital Property Agreement signed by Mother and [her new husband] prior to their marriage evinced the couple’s intent to remain financially independent and showed that [her new husband] was not required to support Mother financially….
[B]ecause the proof did not bear out Mother’s other stated purposes, it appears that the main purpose behind Mother’s proposed relocation is to reside with her new husband…. [R]emarriage alone is not a sufficient reason to grant a party’s request for relocation. This Court has previously explained that in such instances, the analysis will generally focus on whether it is more reasonable for the new spouse to relocate….
[I]n the case at bar, Mother failed to show why she and the children had to relocate to Wisconsin, rather than [her new husband] relocating to Tennessee. Mother argues that it is not reasonable for [her new husband] to move to Tennessee because he would be unable to find similar employment in this state and because he needs to live close to his parents for whom he provides assistance. Mother’s contention ignores [her new husband's] testimony that he did not have to work and that his parents lived independently with minimal assistance from [him]. We conclude that the evidence does not preponderate against the trial court’s finding that Mother’s proposed relocation had no reasonable purpose.
The Court also examined the statutory factors for the best interest analysis and concluded that the evidence did not preponderate against the trial court’s finding that relocation was not in the children’s best interest. The trial court’s denial of Mother’s request to relocate with the children was affirmed.
K.O.’s Comment: (1) Kudos to Father’s lawyers for the higher-cost-of-living argument at trial.
(2) Compare this opinion to that in Goddard v. Goddard, where the same Court of Appeals (Eastern Section) held that the mere prospect of better employment is a reasonable purpose and that the child’s best interest is “fundamentally interrelated” with the primary residential parent’s best interest.
(3) The Court discusses approvingly the gravity of harm analysis from Carman v. Carman, a case that is easily distinguishable when comparing the father’s involvement in the children’s lives (a lot in Carman, less here). After such a warm reception for this argument in a very different factual scenario, one could conclude that this argument should be asserted in every parental relocation case, not just those where the father has been a very active parent.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.
- Imputed Income Reversed in Lebanon Child Support Modification: Muhlstadt v. Muhlstadt (herstontennesseefamilylaw.com)
- In Chattanooga Divorce, Child Custody Reversed in 2-1 Decision: Kelly v. Kelly (herstontennesseefamilylaw.com)
- Parental Relocation is Material Change in Clarksville Divorce: Iman v. Iman (herstontennesseefamilylaw.com)
- Joint Decision Making Changed to Sole Decision Making in Brentwood Post-Divorce Matter: Hayes v. Pierret (herstontennesseefamilylaw.com)
- Joint Custody and Decision-Making Modified in Winchester After Divorce: Smart v. Smart (herstontennesseefamilylaw.com)