Facts: Mother and Father are the never-married parents of two children. Their parenting plan provided equal time via alternating weeks and designated Mother as the primary residential parent.

Mother informed Father she and the children had moved from Murfreesboro to Fayetteville, Tennessee.

Father filed an emergency petition opposing relocation and asked for the immediate return of the children to Murfreesboro. He alleged that Mother moved over 50 miles from his home (precisely 52 miles) based on a Google map of the driving distance, thus triggering the parental relocation statute.

Mother responded that she had not moved over 50 miles away based on a Google map showing a straight line or radial distance of 44.45 miles from Father’s address to hers.

The proof showed that Mother married Stepfather. Stepfather has two children of his own who live in Alabama. According to Stepfather’s custody order, he must live within a certain distance from his children. Mother and Stepfather tried to buy a house that would allow each to stay within the proper radius required by their respective court orders. They settled on a home in Fayetteville.

The trial court found the relocation statute applied based on Father’s map of the driving distance. After considering the factors in the relocation statute, the trial court found that relocation was not in the children’s best interest. Mother was given a choice: return to Murfreesboro and follow the existing parenting plan or stay in Fayetteville and follow a new parenting plan that makes Father the primary residential parent.

Mother appealed.

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

Tennessee Code Annotated § 36-6-108(a) is Tennessee’s parental relocation statute. It says:

After custody or coparenting has been established by the entry of a permanent parenting plan or final order, if a parent who is spending intervals of time with a child desires to relocate outside the state or more than 50 miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail.

The notice triggers the other parent’s right to agree or to object and start legal proceedings.

The issue presented is how the 50-mile distance is measured. Unfortunately, the relocation statute does not say how to measure the distance.

The Court found the straight-line method the proper measurement of distance for Tennessee’s parental relocation statute:

The general rule is that, in the absence of any specific statutory provision governing the manner of measurement of distances, distances to be measured along the shortest straight line, on a horizontal plane, and not along the course of a highway, or along the usual traveled way. Express language or context may alter the rule, but the parental relocation statute offers neither.

In our opinion, the proper measurement of miles in [the parental relocation statute] is radial miles, otherwise known as the straight-line method. Thus, the trial court erred in using Father’s map, which utilized the miles-driven method. Because Mother moved less than 50 radial miles, the relocation statute does not apply to this case.

Logically, if the relocation statute does not apply, and we have so held, the factors within the statute cannot be used to evaluate the best interest of the children based on a nonexistence violation thereof. The trial court’s “concern” is a nullity, as are all the findings under [the parental relocation statute].

The trial court evaluated these factors because it felt the relocation statute applied. It does not and, therefore, all of the trial court’s findings under [the parental relocation statute] are a nullity.

Father suggests that even if the relocation statute does not apply, the evidence does not preponderate against a finding of a material change in circumstances sufficient to trigger a best-interest analysis resulting in a modification of the parenting plan and primary parent designation. There are two problems with this argument. First, all of the trial court’s findings were made pursuant to the parental relocation statute and are a nullity because the statute does not apply. Second, Father did not plead a material change in circumstances [] in the trial court. We will not consider the issue for the first time on appeal. Nothing in this opinion should be construed as foreclosing Father from subsequently asserting a material change of circumstances and addressing the impact of Mother’s move as part of his contention.

The Court reversed the trial court’s judgment in its entirety.

K.O.’s Comment: In another parental relocation case, Chambers v. Chambers, the Court was presented with a situation where both the miles-driven and straight-line methods were less than 50 miles. There, the Court said either method could be used. That wasn’t a problem in Chambers because either way resulted in the same conclusion. That approach wouldn’t work here, so the Court had to pick one option to the exclusion of the other. We now have a definitive answer to how distance is measured in parental relocation cases.

Source: Barrett v. Killings (Tennessee Court of Appeals, Middle Section, April 24, 2023).

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