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Child Custody

My Ex wants to move and take our children: What do I do?

In Tennessee, if a parent wants to move more than 50 miles away, or across state lines, a specific statutory process is triggered. These types of custody cases are called “Relocation cases.” Parents must follow strict guidelines to be able to move, or to stop a move, of the children away from you.

Tennessee’s relocation statute is found at TCA 36-1-108, and says:

“After custody or co-parenting 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 fifty (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. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:

  • Statement of intent to move;
  • Location of proposed new residence;
  • Reasons for proposed relocation; and
  • Statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice.

The first step, if you are the parent who wants to move, is to send this Notice. And it has to be perfect, so you may want to get a lawyer to help you write it.

If you are the parent who has received a notice like this, you need to act fast. You will need to immediately hire a lawyer, because you only have thirty days to file your Petition in Opposition to Relocation. Failure to file this Petition on time means that you waive any objection to the children moving. The statute says:

  • In the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.

A case in the Court of Appeals called Rutherford v. Rutherford emphasizes the importance of filing your Petition in Opposition on time – within thirty days. The case says:

“TCA 36-6-208 mandates that a parent wishing to oppose relocation file a petition in opposition within thirty days of receipt of notice of the proposed relocation. If no written petition in opposition is timely filed, the parent proposing to relocate with the child shall be permitted to do so.”

In Rutherford, the Father’s Petition was late, and he lost the ability to challenge the Mother’s move. The reason for this, says the Court of Appeals, is that the legislature made a policy decision to permit the non-custodial parent to file a petition opposing the relocation, but only within the “rigid” structure of the statute, to limit judicial intervention and get the case resolved quickly.” In other words, the Courts recognize that if someone is moving, they likely have a reason – either a job, or a housing opportunity, or a relationship. And therefore, in relocation cases, if the non-relocating parent wants to object, they need to make their objections known quickly and get to court.

Once the case is in court, the law encourages parents to try to work things out between themselves: TCA 36-1-108(b) says:

  • Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation.

If the parents cannot work it out, the Court is going to apply one of two analyses, depending on whether the parents have “substantially equal time” with the children or not. Basically, if both parents have substantially equal time, it is harder for the relocating parent to move with the children than if they aren’t.

A great deal of litigation has attempted to tell parents whether they have substantially equal time or not, and the answer to the question is not always clear – again, this is why it is even more important than in the usual custody case to get a good lawyer.

If the parents are not seeing the children roughly equally, then the statute says:

  • The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child 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; or
  • The parent's motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

What constitutes “specific and serious harm to the child” is defined within the statute. Basically, there has to be some showing that there is something wrong with the place that the children are moving to – either a lack of medical care, a lack of schools, or a lack of emotional support systems would be grounds. Other grounds would be that the parent appears to be doing this on purpose to take the children away – in other words, there is no job, no relationship, no reason for the move. These are hard things to prove, and you’ll need your lawyer to be detail-oriented and aggressive in putting together this part of the case.

Finally, the Court will always engage in a “best interest analysis,” to determine what schedule is likely to be best for the children in the event of a move. The statute says:

  • If the court finds one (1) or more of the grounds designated in subsection (d), the court shall determine whether or not to permit relocation of the child based on the best interest of the child. If the court finds it is not in the best interests of the child to relocate as defined herein, but the parent with whom the child resides the majority of the time elects to relocate, the court shall consider all relevant factors including those factors found in § 36-6-106(a)(1)-(15).

T.C.A. 36-1-108( c). This is the same statute that applies to analyze the best interest of the child in all regular divorce and post-divorce custody disputes. Check out our blog called “15 Questions a Court Asks to Determine Custody” to learn more about what a best interest analysis looks like.

If you are facing a relocation case, give us a call. These are extremely complex cases with hard deadlines to meet and very specific evidence issues to work through. This is not the type of case to take on by yourself – we know that due to our experience successfully litigating dozens of relocation cases in recent years. Call us. We are here to help.