Facts: Mother and Father are the unmarried parents of two children. After parentage was established, Father sought equal parenting time.

Mother sent Father a notice of her intent to relocate with the children to the Nashville area. The letter told Father that Mother had accepted “an opportunity for advancement” with her employer.

Father filed a petition in opposition to the children’s relocation.

Unbeknownst to Father, Mother moved to Dickson with the children and moved in with Mother’s boyfriend, who she met six months earlier.

Although Mother would meet Father to exchange the children, she did not inform him that she had moved and did not provide him with her address. Mother enrolled the oldest child in kindergarten in Dickson but did not inform Father where the child was attending school. Mother did not provide Father’s information on the school enrollment forms, instead listing her boyfriend as the emergency contact. (!!!)

When the case was tried, the trial court determined Mother was spending at least 60% of the time with the children prior to her relocation. The trial court then analyzed the case under the parental relocation statute — Tennessee Code Annotated § 36-6-108(d) — which creates a presumption in favor of relocation unless it lacks a reasonable purpose, poses a threat of harm to the children, or is motivated by a desire to defeat or deter the other parent’s visitation.

The trial court ruled Mother’s relocation did not have a reasonable purpose and was motivated by vindictive reasons intended to thwart Father’s visitation. After conducting the best interest analysis, the trial court designated Father as the primary residential parent and awarded visitation to Mother on alternating weekends and certain holidays.

Mother appealed.

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

Because the trial court was making an initial custody determination, the Court said it was error to apply the parental relocation statute. The parental relocation statute only applies after the initial custody determination.

When making an initial child custody determination, a trial court is required to decide what is in the child’s best interest as required by Tennessee Code Annotated § 36-6-106. Likewise, the final step of the trial court’s analysis under the parental relocation statute, in this case, was to consider the best interest of the child.

Here, the Court held the trial court ultimately performed the best interest analysis required for an initial custody determination despite the initial error in applying the relocation statute. The Court found the evidence supported the finding that Father should be the primary residential parent:

[T]he trial court found that Mother made visitation difficult for Father before and after the move and thwarted Father’s visitation for over a month after she moved. She unilaterally eliminated Father’s weekend visitation on several occasions after moving to Dickson, which resulted in periods of thirty to forty days when the children did not see Father. Mother failed to advise Father where the children lived or attended school and refused to provide him with her address at either residence in Dickson. Mother put her boyfriend’s name on the children’s school enrollment forms in the space designated for the father and as the emergency contact. Mother denied Father’s request for copies of the children’s birth certificates and social security cards. She taught the children to write their last names, which were legally hyphenated, without including Father’s last name. She acknowledged that the children now “go by” Dayhoff instead of their hyphenated name, as the children’s report cards confirmed. Mother took the children on two trips to Maryland and refused to provide Father with any type of itinerary or emergency telephone number where they could be reached . . . .

Finding these fact “certainly relevant” to the best interest analysis, the Court affirmed the trial court’s judgment even though the trial court erred in applying the parental relocation statute.

K.O.’s Comment: The Court of Appeals has repeatedly held that the parental relocation statute is inapplicable when the trial court is making an initial custody decision or parenting arrangement even if a parent is relocating. See, e.g., Nasgovitz v. Nasgovitz and Graham v. Vaughn. The parental relocation statute has no place in an initial custody determination.

This case stands for the proposition that even if the trial court screws up by applying the parental relocation statute when it shouldn’t, the end result may be preserved on appeal as long as the trial court conducted the best interest analysis required in initial child custody determinations.

Dayhoff v. Cathey (Tennessee Court of Appeals, Western Section, August 25, 2016).

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