Incorrect Burden of Proof Leads to Reversal in Nashville, TN Parental Relocation Case: Stanley v. Stanley

Facts: Mother and Father are the parents of two children. Everyone lived in Oklahoma until moving to Tennessee in 2005.

Mother and Father divorced in 2008 in Nashville. Under the operative parenting plan, Father was designated the primary residential parent. Mother was awarded 110 days of parenting time.

tennessee parental relocationOn March 2, 2015, Mother received via certified mail Father’s notice advising that he intended to move back to Oklahoma with the children.

On March 11, Father, apparently acting under the mistaken belief that Mother was avoiding receipt of the notice, filed a petition to relocate with the children.

Within 30 days of her receipt of the notice mailed by Father, Mother filed both an answer to Father’s petition and a counterpetition in opposition to Father’s proposed relocation. Mother alleged that Father lacked a reasonable purpose for the move.

During the opening statement of Father’s counsel, the trial court remarked that the burden of proof was on Father to establish a reasonable purpose. The trial court said, “The burden is . . . always on the petitioner, and had the mother filed a petition in opposition, the burden would be on her to prove no reasonable purpose.”

The proof showed that Father expected to inherit the family farm owned by his grandparents in Oklahoma. The grandparents needed Father’s assistance because of their advanced age and failing health. The children, ages 13 and 11, testified they wanted to move to Oklahoma with Father, although they expressed concern about living so far away from Mother. The children felt torn about having to choose sides.

The trial court denied Father’s petition to relocate, specifically finding that Father’s relocation was not for a reasonable purpose. The trial court emphasized that the relocation was not for “work purposes.”

Father appealed.

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

The Parental Relocation Statute, Tennessee Code Annotated § 36-6-108, governs a parent’s request to relocate with a minor child outside the state or more than 50 miles from the other parent within the state.

Tennessee Code Annotated § 36-6-108(d)(1) provides that the parent spending the greater amount of time with the child shall be permitted to relocate, notwithstanding an objection by the other parent, unless the court finds:

  • the relocation does not have a reasonable purpose;
  • 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; and
  • the parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the noncustodial parent or the parent spending less time with the child.

Even if one of the three grounds is proven, the court may still permit relocation based on the best interest of the child.

Under the old common law, the burden of proof in a parental relocation case fell on the party who filed a petition seeking relief.

That common-law rule was first abrogated by the Tennessee Supreme Court in Aaby v. Strange, which held the custodial parent seeking to relocate had to file a petition, at which time the noncustodial parent could present evidence regarding the custodial parent’s motives for moving.

Then came the Parental Relocation Statute, which the Court found is now dispositive on this issue:

Since the enactment of the Parental Relocation Statute, this Court has held that, if the parent seeking to relocate spends the greater amount of time with the child, the parent opposed to the relocation bears the burden of proving one of the three statutory grounds found in Tennessee Code Annotated § 36-6-108(d)(1). We have described this holding as “well-established.” As a result, the common-law rule in these circumstances was altered such that the burden of proof falls on the noncustodial parent whether or not the noncustodial parent files the first petition.

In this case the trial court erroneously placed the burden on Father to prove that his relocation serve a reasonable purpose, rather than placing the burden on Mother to show that the relocation did not serve a reasonable purpose.

Having concluded that the trial court erred by placing the burden of proof on Father, the Court noted that the trial court failed to make findings regarding the children’s best interest. Because of this, the Court declined to conduct a de novo review of the record to determine the best interests of the children. Instead, the case was remanded for a new hearing on Mother’s opposition to Father’s proposed relocation.

Stanley v. Stanley (Tennessee Court of Appeals, Middle Section, December 30, 2016).

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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