Facts: Child was born in Memphis to unmarried parents. A subsequent paternity test confirmed Father’s paternity. Mother was named the primary residential parent, and Father was awarded 90 days of visitation each year. Child support and joint decision-making authority were established.

Several years later, Mother notified Father of her intent to relocate Child from Memphis to Rockvale, a suburb of Murfreesboro. Mother was pregnant and about to marry her fiancé who lived in Rockvale.

Father filed a petition in opposition to Mother’s proposed relocation. He claimed the parties spent substantially equal time with Child such that the statutory presumption favoring Mother’s relocation should not arise. He further alleged that a material change of circumstances had occurred and that it was in Child’s best interest that he be designated the primary residential parent.

Mother denied Father’s allegations. Mother proposed a parenting schedule that reduced Father’s parenting time from 90 days to 80 days.

The trial court bifurcated the the modification issue from the relocation issue and tried the modification issue first.

After a thirteen (!) day trial on the modification issue, the trial court did not mince words in finding against Father, describing his testimony as “incredible” and his arguments as “frivolous” and “arrogant.” The trial court found the parties had not spent substantially equal time with Child. The trial court also found that Mother spent substantially more time with Child than Father and that the reason for her proposed relocation was both reasonable and in Child’s best interest. Mother’s relocation was found to be a material change of circumstances but a change of custody was found not to be in Child’s best interest. Father’s parenting was adjusted to accommodate the distance created by Mother’s relocation. Father appealed.

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

Father argued the trial court erred in ruling on the Mother’s relocation request. Father claimed the relocation issue was bifurcated from the modification issue — which was the only issue tried — and that he was denied an opportunity to present proof regarding relocation. Mother admitted that bifurcation occurred, but she asserted that Father was afforded opportunities to present evidence related to relocation.

First, the Court affirmed the trial court’s refusal to change custody, writing:

Overall, we find the evidence supports the trial court’s conclusion that a modification of the primary residential parent is not in [Child’s] best interest. The evidence at trial indicated that both Mother and Father love [Child]. . . . Both parents are capable of providing for [Child’s] basic and educational needs, but Mother has been her primary caregiver, while Father often relies upon others.

The Court then turned to the relocation issue.

Tennessee Code Annotated § 36-6-108 provides that if the parents spend substantially equal time with the child, no presumption in favor of or against relocation arises. Instead, the court determines whether to allow relocation based upon the best interests of the child, considering the relevant factors set forth in Tennessee Code Annotated §§ 36-16-108(c)(1)-(11). If, however, the parents do not spend substantially equal time with the child, the parent spending the greater amount of time with the child shall be permitted to relocate unless the court finds the relocation has no reasonable purpose, 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 the parent’s motive for relocating is vindictive, in that it is aimed at defeating or interfering with the visitation of the parent spending less time with the child.

On the relocation issue, the Court reversed the trial court, reasoning as follows:

Tennessee has long recognized that a parent’s right to custody is a fundamental liberty interest which may not be abridged absent due process of law. Father and his counsel reasonably believed they would be allowed to present relocation-specific evidence at a second hearing. However, due to the trial court’s discrediting of Father’s testimony and its conclusion that a second hearing would be “redundant[,]” no such hearing ever occurred. In ruling on the relocation issue after limiting the evidence to that concerning modification, the trial court effectively denied Father his day in court. We find no waiver of the relocation issue by Father, as the trial court offered Father the opportunity to schedule a relocation hearing only after it had announced its decision to allow Mother’s relocation.

The trial court’s order permitting Mother to relocate with Child was vacated. The case was remanded to the trial court for an evidentiary hearing on the issue of Mother’s relocation. Child was permitted to reside with Mother in Rockvale pending resolution of the issue on remand.

K.O.’s Comment: You just read a very condensed version of a 57-page opinion. That’s right — 57 pages! Next time you see me, buy me a beer and we’ll call it even.

Toyos v. Hammock (Tennessee Court of Appeals, Western Section, January 17, 2013).

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