Parental Relocation Request Denied Due to Threat of Emotional Harm, Not in Best Interests

February 18, 2013
By The McKellar Law Firm, PLLC on February 18, 2013 9:45 AM |

In the case titled Johnson v. Johnson, No. M2012-00900-COA-R3-CV (Tenn. Ct. App. Jan. 31, 2013), Tennessee divorce attorneys are shown an example of when a parental relocation request should be denied by a trial court.

Facts: The parties were married for 16 years and had three children before an agreed divorce was finalized in January 2010. Mother was named primary residential parent ("PRP") and Father had 122 days of coparenting. In April 2011, Mother sent Father written notice of her proposed relocation to California, due to her desire to go to school to study marine biology. Father filed a Petition in Opposition to Relocation and to Modify the Parenting Plan, asking to be named PRP. At the trial, the court learned the older child was in his final semester of high school and that he wanted live with his Father during college. Mother agreed he should be allowed to stay. Father called an expert who testified that he believed the daughter would suffer substantial emotional harm should she be forced to relocate. The expert also stated that the impact of dealing with her Mother moving to California would be considerably less than if the daughter was also forced to relocate. The trial court held that the daughter would not be allowed to relocate to California, noting the following: Mother's remarriage does support a reasonable purpose for relocation; that Mother's plan of returning to school was not supported by the record; that there was no vindictive purpose by Mother; that the expert opined the daughter would suffer serious harm; and that should Mother still want to relocate with either child, the parties should return to mediation to draft a new parenting plan.

Mother appealed, arguing that the trial court incorrectly held that the threat of harm of relocation outweighed the threat of harm of changing the PRP.

Analysis: The Court must look to T.C.A. §36-6-108(a) & (d), which states that unless the court finds one of the following, the parent shall be allowed to relocate with the child: that the relocation does not have a reasonable purpose; the relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody; or if the motive is vindictive. If any of these are found, the Court will move on to a best interests review under T.C.A. §36-6-108(e).

Here, the trial court found that Mother's remarriage was a reasonable purpose for relocation but also determined that the relocation posed a specific threat of harm that outweighed the harm of changing the PRP, mandating a best interests review. The trial court then determined that the daughter's best interests weighed in favor of not allowing the relocation. Mother argues that the expert testimony did not support a finding of harm. However, said expert stated that the daughter found it difficult to discuss the possibility of moving and would withdraw and shut down. Father testified the child "broke down" upon learning of Mother's intention, and continued to do so for several days afterward. The Appeals Court found that the expert testimony did support a finding of harm that outweighed the harm of changing PRP, and that the trial court also correctly determined that the daughter's best interests weighed in favor of not allowing her to relocate with the Mother.