Posted by: koherston | February 17, 2011

Relocation: In re Spencer E.

Facts: Parents divorced and agreed on a parenting plan naming Father as the primary residential parent of the parties’ children. Mother had co-parenting time each Wednesday after school and every other weekend. Several years later, Mother filed an action in Juvenile Court alleging dependence and neglect for the way Father disciplined one child (it involved having the child point a gun at Father to prove some point). Father was ordered to complete some counseling and secure his firearms. Father then filed a petition to relocate to Atlanta with the child (the other child having already moved in with Mother by agreement). The trial court denied Father’s petition for relocation, finding as follows:

[T]he Court does not find that the father’s proposed relocation to Atlanta, Georgia has a reasonable purpose as the father and step-mother both testified that their employment does not require the relocation, there is no money involved thus a lateral move with only the possibility of future enhancements. . . . The Father testified he wanted to move to Atlanta because it would be better for the child to be farther from the mother due to the difference of the mother’s and father’s parenting styles.

Father appealed.

The Court of Appeals affirmed the trial court.

Tenn. Code Ann. § 36-6-108(d)(1) governs the standards to be applied by a court in deciding the relocation petition of a parent who spends the greater amount of time with the child, as in the present case:

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.

Under these provisions, the parent seeking relocation will be allowed to relocate with the child unless one (or more) of the three statutory grounds is found to exist. The burden of proof is upon the parent opposing the relocation to establish one of these three grounds. If the opposing parent cannot prove any of the three grounds, the relocation shall be permitted. If the opposing parent successfully establishes one or more of the three statutory grounds, the court must then proceed to determine whether relocation would be in the child’s best interests.

At trial, Father acknowledged stating that putting distance between Child and Mother would be beneficial to Child. The trial court found:

The Father testified he wanted to move to Atlanta because it would be better for the child to be farther from the mother due to the difference of the mother’s and father’s parenting styles. Pursuant to Tenn. Code Ann. § 36-6-108(d)(1)(C), the Court finds that this amounts to vindictive motivation which would most certainly defeat or deter the scheduled visitation and result in less time for the child to spend with his mother with whom he has a very strong [emotional] attachment and looks to fulfill those needs.

The Court concluded, “There is other evidence in the record showing Father’s hostility toward Mother, his desire to put distance between [Child] and Mother, [Child’s] anxiety about moving, and his close emotional attachment to Mother. We find no reversible error.”

Protip: When seeking permission to relocate a child, you will need a better reason than your desire to keep the child away from the other parent.

In re Spencer E. (Tennessee Court of Appeals, Middle Section, January 20, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


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