Facts: Mother and Father, the never-married parents of two children, separated. Their parenting plan provided for equal parenting time and included these terms:

1. Neither parent may move out of Montgomery County, Tennessee with the children unless agreed by both parents.
2. If either party allows the other to move out of Montgomery County, Tennessee, then the children may choose which parent they would like to live with as the primary parent.
3. The parent who moves out of Montgomery County, Tennessee shall be responsible for all costs involved with visiting the children.

Less than a year later, Mother notified Father of her intent to relocate with the children to Texas with her new husband. Father filed a petition in opposition to the relocation and requested to modify the parenting plan to designate him as the primary residential parent.

The trial court ruled that the provisions of the parenting plan prohibiting relocation supersede Tennessee’s parental-relocation statute. Alternatively, the trial court found that relocation was not in the children’s best interest.

Mother appealed.

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

Tennessee Code Annotated § 36-6-108 governs the relocation of parents whose children are subject to a parenting plan. The statute sets out the procedure the relocating parent must follow to give the other parent ample notice of the intention to move and the opportunity to object. The statute also establishes the standards for the court to apply when ruling on a request to relocate.

A similar anti-relocation provision was at issue in Self v. Self. The Court of Appeals ruled the provision was unenforceable because the agreement lost its contractual nature when it was merged into the trial court’s order, thereby becoming subject to the continuing power of the court to modify the parenting plan when circumstances change.

The Court’s reasoning followed Self:

As in Self, Mother and Father in this case agreed that neither parent would be permitted to move away from Clarksville with the children without the other parent’s consent; this agreement was made the order of the court. Father relied on this provision in opposing Mother’s relocation, and the trial court concluded that the provision superseded the requirements of the relocation statute. We agree with the holding in Self that parents cannot “bargain away the continuing jurisdiction of the care and custody of children.” Contrary to the trial court’s holding, the provision in the parenting plan cannot prevent the court from following the procedures set forth in § 36-6-108 as it considers the potential change in circumstances caused by relocation of one of the parents.

The trial court’s determination that the provisions in the parenting plan superseded the relocation statute was reversed. Mother’s relocation was denied, however, because the evidence supported the trial court’s finding that it was not in the children’s best interest.

K.O.’s Comment: When I commented on the Self opinion, I suggested one way of drafting a parenting plan to make parental relocation less likely to be approved by the court. If you have any other ideas, share it in a comment below.

In re Blake A. (Tennessee Court of Appeals, Middle Section, July 19, 2018).