Anti-Parental Relocation Provision in Parenting Plan Ruled Unenforceable in Fayetteville, TN: Self v. Self

Facts: Mother and Father, parents of three children, divorced in 2009.

They agreed to a parenting plan awarding 182 days to Father and 183 days to Mother based on an alternating week-to-week schedule. Notably, the parenting plan contained the following provision in Paragraph J:

If either party should relocate from Lincoln County, Tennessee, the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System.

Both parties subsequently remarried. Mother gave birth to three children with her new husband.

In 2014, Mother notified Father that she and the children would be moving to Brentwood, Tennessee because of her new Husband’s employment.

Father filed a petition in opposition to the proposed relocation and requested that he be named the primary residential parent for the parties’ three children.

Mother filed a response and counter-petition to relocate with the children.

Following a hearing, the trial court denied Mother’s proposed relocation. The trial court found Mother was estopped from invoking the parental relocation statute — Tennessee Code Annotated § 36-6-108 — because of the agreed restraint against relocation in the parenting plan. The trial court then designated Father the primary residential parent and awarded visitation to Mother.

Mother filed a motion to alter or amend alleging, in relevant part, that the trial court failed to conduct a best interest analysis pursuant to the relocation statute. Following a hearing on the motion, the trial court agreed to conduct a best interest analysis. After making specific findings regarding the relevant factors under the parental relocation statute, the trial court found the relocation was not in the children’s best interests. The trial court further stated its earlier order was modified to include the best interest analysis as an alternative basis for the denial of Mother’s relocation request.

Mother appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Estoppel. Mother first argued the trial court applied an incorrect legal standard by enforcing the anti-relocation provision in the parenting plan.

Tennessee Code Annotated § 36-6-108 provides a framework for parents and courts to determine whether a child’s relocation should be permitted. The statute creates a presumption in favor of the relocating custodial parent who spends substantially more time with the child than the non-custodial parent. However, if the parents are actually spending substantially equal intervals of time with the child, there is no presumption in favor of or against the request to relocate. In such circumstance, the decision on whether to permit relocation of the child is to be based on the best interests of the child.

Tennessee law provides that the terms in a divorce decree that pertain to the care, custody, and control of minor children shall remain within the control of the court and be subject to such changes or modifications as the exigencies of the case may require. When parents contract upon issues that remain within the jurisdiction of the court, the agreement of the parties becomes merged into the decree and loses its contractual nature. The reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the court to modify its terms consistent with changed circumstances.

After reviewing the record, the Court reversed the trial court’s ruling that the anti-relocation provision in the parenting plan prevented Mother from seeking to relocate with the children. The Court explains:

[T]he relocation provision in the parenting plan which mandated that “the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System” lost its contractual nature when it merged into the final decree of divorce. Moreover, issues concerning the care, custody, and control of the minor children remain subject to the court’s continuing jurisdiction, so that they may be modified as circumstances change. Accordingly, Mother was not estopped to relocate. As Tennessee Code Annotated § 36-6-108(c) mandates, whether Mother should be permitted to relocate must be based on the applicable best interest factors, not an unenforceable agreed upon restraint on relocation. Therefore, we reverse the trial court’s ruling that Mother was estopped to relocate based on the relocation provision in the parenting plan.

Best interests. Mother also argued the evidence preponderates against the trial court’s findings of fact upon which it concluded that the proposed relocation was not in the children’s best interests.

In the trial court’s best interest analysis, it made the following finding:

Factor eight (8), the home, school and community record of the children also weighs heavily against relocation. It is in the children’s best interests to remain in the community where they have lived their whole lives where they have been surrounded by their parents and by an extended family that cares deeply for them and is invested in their success. This is especially true in light of Paragraph J of the Permanent Parenting Plan where the parties clearly contemplated the children remaining in the Lincoln County School system. This factor weighs heavily against relocation.

The Court affirmed the trial court’s best interest assessment, explaining:

It is readily apparent that some of the trial court’s findings were influenced to varying degrees by Paragraph J of the parenting plan, wherein the parties agreed in 2009 that if one of them moved away, the parent who remained in Lincoln County would be the primary residential parent. Having already concluded that the relocation provision is unenforceable, it would be error for the trial court to implicitly enforce Paragraph J. Nevertheless, it is undisputed that the parents were in agreement in 2009 that it was in the children’s best interests to reside primarily with the parent remaining in Lincoln County. Thus, we find no error with the trial court including this undisputed fact within its findings of fact. Further, we find no error with the trial court’s statement: “While it is clear to the Court that it retains the jurisdiction over the best interest of minor children, what is less clear is why the Court should just ignore the considered judgment of parents who agreed that education in the Lincoln County School System was of a paramount concern of theirs.” Contrary to Mother’s contention, the trial court was not required to ignore the considered judgment of the parents in 2009 when they agreed to Paragraph J. Thus, we have concluded that the trial court acted appropriately by considering that fact along with the parents’ respective explanations of why Paragraph J was or was not in the children’s best interests at the time of trial, along with all other relevant factors, to determine what was in the children’s best interests when the case was tried in 2014….

In this case, there is no statutory presumption for or against relocation and the best interest factors weigh against relocation. Therefore, having reviewed the record and each of the trial court’s findings, we affirm the trial court’s decision to deny Mother’s request to relocate with the children.

Accordingly, the trial court’s estoppel ruling was reversed but its best interest analysis was affirmed.

K.O.’s Comment: Anti-relocation provisions in agreed parenting plans are not uncommon. This case plainly holds such provisions are unenforceable.

So what is one to do? I suggest a statement noting the parents’ agreement as to the specific reasons why they agree future relocation will not be in their child’s best interest. While such a statement won’t be dispositive of a future request for relocation, it may be afforded great weight in the best interest analysis, as happened here.

Most importantly, clients must be made aware of the limited utility of such anti-relocation provisions.

Self v. Self (Tennessee Court of Appeals, Middle Section, September 23, 2015).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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