Relocation Not in Child’s Best Interest in Tennessee Divorce: Nasgovitz v. Nasgovitz

August 16, 2012 K.O. Herston 0 Comments

Facts: After nine years of marriage, Father and Mother divorced. They have one daughter. Throughout the marriage, they lived in Rutherford County, Tennessee. Prior to the trial, Mother asked the court for permission to move to St. Louis with the child because she had “obtained several job leads” in the area. Mother also contended the relocation was in the child’s best interest. Father opposed the relocation. At trial, the evidence revealed that Mother had developed a romantic relationship with another woman in St. Louis. Mother also testified she had been offered a full-time job in St. Louis in her field of interior architecture. The trial court found both parties to be fit and loving parents. Because of Father’s work schedule and Mother’s primary role in raising the child, the trial court designated Mother as the primary residential parent. The trial court rejected Mother’s proposed relocation, however, finding it to be unreasonable, possibly pretextual, and not in the child’s best interest. Mother appealed.

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

Tennessee Code Annotated § 36-6-108 sets out a procedure that the parent who intends to relocate must follow, in order to give the other parent ample notice of his or her intention as well as the opportunity to object. That statute also establishes the standards for a court to follow in ruling on a request to relocate with a minor child. The standards are to be applied depending upon which of two alternate situations exist.

Tennessee Code Annotated § 36-6-108(c) applies if the parents are “actually spending substantially equal intervals of time with the child.” In that situation, “no presumption in favor of or against the request to relocate with the child shall arise.” Rather, the court must determine whether to permit relocation on the basis of the best interests of the child, which are to be determined in accordance with the factors set out in Tennessee Code Annotated § 36-6-108(c)(1-11).

On the other hand, Tennessee Code Annotated § 36-6-108(d) applies if “the parents are not 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.” In that situation, the relocation “shall” be permitted unless the court finds one or more of the following factors to exist:

(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 one of the above factors does exist, then the court shall determine whether or not to permit relocation of the child based on the best interest of the child.

This statutory relocation analysis does not applied when the court is making the initial custody decision or parenting arrangement. Thus, it is proper for a trial court to refuse to apply the relocation statute to a move that takes place during the pendency of a divorce action. Before the trial, Tennessee Code Annotated § 36-4-106(d)(5) governs and provides in pertinent part:

An injunction restraining both parties from relocating any children of the parties outside the state of Tennessee, or more than one hundred (100) miles from the marital home, without the permission of the other party or an order of the court, except in the case of a removal based upon a well-founded fear of physical abuse against either the fleeing parent or the child.

This statute governs any requests to relocate with a minor child during the pendency of a divorce proceeding until a final or permanent parenting plan is ordered. Consequently, the relocation statute does not apply during that time.

The Court reviewed the evidence and concluded:

We cannot conclude that the trial court’s determination of best interests is in error. A trial court’s determination of a post-divorce parenting plan for a minor child must be made upon the basis of the best interest of the child. Such determinations are not intended to either reward or to punish parents, but rather to place the child in an environment that will that will best serve its physical and emotional needs.

The evidence shows that [Child] has thrived in her current environment, and that she is an intelligent and happy child and a good student. Taken as a whole, the proof shows that both parties are capable and loving parents, and that it is in the best interest of their child to have frequent contact with both of them, and it is in her interest to remain in the school she has been attending.

Accordingly, the trial court’s refusal to permit Mother’s proposed relocation with the child was affirmed.

Nasgovitz v. Nasgovitz (Tennessee Court of Appeals, Middle Section, June 27, 2012).

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

Relocation Not in Child’s Best Interest in Tennessee Divorce: Nasgovitz v. Nasgovitz was last modified: February 4th, 2013 by K.O. Herston

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