Facts: Mother and Father, the parents of two children, married and lived in Colorado for many years until moving to Tennessee. About six months after moving to Tennessee, Mother and Father separated. Over a year later, Mother filed for divorce.

Each parent was designated the primary residential parent for one child, with the other parent receiving 85 days of parenting time per year.

In June 2015, Mother lost her job in Tennessee. Two months later, she notified Father of her intention to relocate to Colorado with the child for whom she was the primary residential parent. Mother stated she had been offered a job at a startup in Colorado. She also said the move would allow her to be close to her family.

Father filed a petition in opposition to Mother’s removal of the child.

The trial court found Mother did not have a reasonable purpose for her relocation, citing the “lack of experience” of her prospective employer in Colorado. The trial court also found the proposed relocation was not in the child’s best interest.

Father’s petition opposing Mother’s request to relocate with the child was granted.

Mother appealed.

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

One of the most common postdivorce flashpoints occurs when the primary residential parent decides to move with his or her child or children to another city or state. One parent loses regular parenting time with the child as a result of the other parent’s move. The farther the move, the more intense the opposition because of the move’s effect on visitation and the ability of the other parent to foster and maintain an appropriate relationship with his or her child or children.

Under the parental relocation statute found at Tennessee Code Annotated § 36-6-108, the appropriate analysis depends upon the relative amount of time the parents spend with the child. In this case, Mother spends substantially more time with the child than does Father; therefore, the applicable statutory provision is Tennessee Code Annotated § 36-6-108(d)(1):

If the parents are not actually 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, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(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.

Thus, if the parents do not spend substantially equal intervals of time with the child, there is a legislatively-mandated presumption in favor of the relocating custodial parent. The burden is on the parent opposing the relocation to prove one of the three statutory grounds. If the opposing parent fails to do so, the court must allow the relocation.

Determinations of whether a proposed move has a reasonable purpose are fact-intensive and require a thorough examination of the unique circumstances of each case. Tennessee courts have consistently held that a salary increase and career advancement opportunities can be a factual predicate to constitute a reasonable purpose for relocation. They have also stated, however, that there must be more than a mere hope or belief of a better opportunity or a salary increase. Other pertinent economic factors include the relative significance of the salary increase, the cost of living in the proposed location compared to the present location, the firmness of the job offer, opportunity for career advancement, and economic betterment of the family unit.

After reviewing the record, the Court found Mother had a reasonable purpose for relocating:

In finding no reasonable purpose, the trial court focused almost exclusively upon Mother’s prospective employer, reasoning that the courts impose an implicit “requirement that there be some certainty with respect to the entity making the offer of employment.” The trial court found that [Mother’s prospective employer] had no experience in the particular type of business being developed . . . . While commending the objective of the company as “promising,” the trial court expressed concern that “there are as yet no results with which to gauge its prospects.” Similarly, although the salary projections for Mother of $60,000 to $150,000 (with bonuses) were “potentially lucrative; there was no certainty with respect to the ability of the entity to eventually make that payment.”

As stated above, Mother’s job prospects must be more than “a mere hope or belief.” They need not, however, be an absolute certainty. Contrary to the reasoning of the trial court, we find that Mother’s opportunity with [her prospective employer] was not speculative or uncertain enough to justify the trial court’s decision. [Mother’s prospective employer] had experience with startup companies and had already contributed substantial capital and raised additional capital for the venture at issue. Moreover, Mother had developed other job opportunities in Colorado. . . . There is no evidence to suggest Mother could not find other such opportunities in Colorado, if necessary.

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In this case, Father did not produce any evidence of jobs available for Mother in the Chattanooga area. Father failed to prove that Mother’s proposed relocation to Colorado for job opportunities was not for a reasonable purpose. We conclude that the trial court erred in finding that Mother’s relocation was not for a reasonable purpose.

Thus, the trial court’s judgment was reversed and the case remanded for a new parenting schedule in light of Mother’s relocation.

Mouton v. Mouton (Tennessee Court of Appeals, Eastern Section, November 16, 2016).

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