Many people believe that once they divorce a spouse that their dealings with them are over. However, when children are involved this is rarely the case. Post-divorce custody issues come up all too often, and there are many complex legal issues involved. One of these types of issues is the relocation of a parent.
Tenn. Code Ann. § 36-6-108 deals with parental relocation and sets forth the statutory requirements for same. If a parent is moving more than 50 miles from another co-parent the statute requires the moving co-parent to send written notice via certified mail to the other parent within 60 days of the intended move date. The notice must include the following:
• Statement of the intent to move;
• Location of the proposed new residence;
• Reason for the relocation; and
• Statement advising the other parent that he or she may file a petition in opposition to the move within 30 days of the receipt of the notice.
Tenn. Code Ann. § 36-6-108(a)(1)-(4).
Most parenting plans require parents to resolve any issues with modifications of the plan via mediation or arbitration. However, in circumstances where an order of protection is involved parties may ask the Court for a waiver of this step and go directly to a hearing.
If mediation or arbitration is unsuccessful, the relocating party must file a petition with the court requesting a modification of the parenting plan as per Tenn. Code Ann. § 36-6-108(b) which states in pertinent part, "[u]nless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation." Factors that the court considers in deciding these matters differ depending on whether the parents enjoy equal co-parenting time or not. For instance, Tenn. Code Ann. § 36-6-108(c)(1)-(11) sets forth the factors a court considers when both parents enjoy "substantially equal intervals of time with the child." Tenn. Code Ann. § 36-6-108(c). Some, but not all, of these factors are as follows:
• How visitation has been exercised in the past
• Whether the primary residential parent is likely to comply with a new visitation arrangement
• The relationship of the child with the parents
• Continuity in the child's life
• Mental and physical health of the parents
• Character and behavior of others living in the parents' homes
Tenn. Code Ann. § 36-6-108(c)(1)-(11).
However, if the co-parenting time is not equal preference is given to the parent with whom the child spends the most amount of time. Tenn. Code Ann. § 36-6-108(d)(1) states that if the parent seeking the relocation is the parent that spends the most amount of time with the child the relocating parent will be allowed to relocate unless the court finds the following:
• The relocation does not have a reasonable purpose
• The relocation poses a threat of specific and serious harm to the child
• The parent's motive for relocating is vindictive in nature
Tenn. Code Ann. § 36-6-108(d)(1)(A)-(C). This means that the burden is on the parent that has less time with the child to prove that any of the above circumstances exists. The statue goes on to define specific and serious harm as:
(A) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is available;
(B) If a parent wishes to take a child with specific educational requirements to an area with no acceptable educational facilities;
(C) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently using alcohol or drugs;
(D) If the child relies on the parent not relocating who provides emotional support, nurturing, and development such that removal would result in severe emotional detriment to the child;
(E) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state, and such support system is not available at the proposed relocation site; or
(F) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, that does not have an adequately functioning legal system or that otherwise presents a substantial risk of specific and serious harm to the child.
Tenn. Code Ann. § 36-6-108(2)(A)-(F).
In addition to the statutory requirements, courts also rely on prior opinions and its own observations to make their decisions. It is highly advisable that any relocating, divorced parents in Tennessee speak with an attorney prior to finalizing any plans to move to make sure proper procedure is followed and that the statutory requirements are met.