Facts: Mother and Father — the parents of one child — divorced in 2005. The parenting plan provided equal parenting time and named Mother the primary residential parent.

In 2014, Mother notified Father by certified mail of her intent to relocate with the child to North Carolina.

Thirty-five days after receiving the relocation letter, Father filed a petition opposing Mother’s relocation with the child. Father sought to modify the parenting plan to designate him as the primary residential parent. In response, Mother filed an answer requesting that she be allowed to relocate.

At trial, Mother argued she should be allowed to relocate because Father’s petition was not filed within the 30-day period set forth in Tennessee Code Annotated § 36-8-108(g). The trial court found the untimely filing of Father’s petition was an affirmative defense that Mother waived by failing to raise it in a timely manner.

The trial court determined relocation would not be in the child’s best interest. Accordingly, the trial court modified the parenting plan to designate Father as the child’s primary residential parent.

Mother appealed.

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

Mother argued that because Father’s petition was filed outside of the 30-day filing period set forth in Tennessee Code Annotated § 36-6-108(g), he waived the opportunity to oppose her relocation, and she should have been automatically allowed to relocate with the child without further consideration by the trial court.

Parental relocation in Tennessee is governed by Tennessee Code Annotated § 36-6-108. The statute was enacted to provide consistency in relocation proceedings. It provides that a parent who desires to relocate shall send notice by mail to the other parent of his or her intent to move at least sixty days prior to the move unless excused by a court for exigent circumstances. The notice must contain the location of the proposed new residence, reasons for the proposed relocation, and a statement that the other parent may file a petition in opposition to the move within thirty days. In the event no petition in opposition to the proposed relocation is filed within 30 days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.

After reviewing the record, the Court reasoned:

Section 36-6-108(g) provides that a parent who wishes to oppose another parent’s relocation with the child must file a petition in opposition within 30 days of receiving notice of the proposed relocation. Specifically, that subsection states, “[i]n the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.” Here, it is undisputed that Father’s petition in opposition was filed 35 days after he received notice of Mother’s intent to relocate. However, because Mother failed to raise it in her answer or counter-petition, the trial court excused Father’s untimely filing and proceeded to consider the merits of Mother’s relocation.

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[T]he legislature enacted Section 36-6-108 to provide a rigid, mandatory structure in parental relocation cases that “drastically limits the trial court’s discretion and compresses the timeline for resolution.” As such, it is clear that the legislature intended subsection (g) of the statute to restrict a trial court’s authority to interfere with a parent’s proposed relocation unless the parent opposing the move files a petition within 30 days of receiving notice.

Based on the foregoing, we conclude that Mother was not required to raise the untimely filing of Father’s petition in opposition to relocation as an affirmative defense. Once the mandatory 30-day filing period passed without Father filing a petition opposing Mother’s relocation, Mother was free to relocate with the child without Father’s consent or a court order as long as her notice to Father met the requirements of Section 36-6-108(a).

Thus, the trial court’s judgment was reversed. Mother is allowed to relocate to North Carolina with the child. The parenting schedule will be modified to accommodate the relocation.

Ross v. Rosswoods (Tennessee Court of Appeals, Middle Section, May 19, 2016).

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