Can I take my minor children and move away from my ex?
What limitations are there on my right to do this?
Note: This page is not intended as legal advice. It expresses general principles about Tennessee law as it stands in August 2018. The laws relating to divorce and child custody change regularly in Tennessee. You should contact an attorney to get advice about your specific situation under the law as it exists at the time your situation arises. You are invited to make an appointment with Ms. Holyfield to discuss the specifics of your situation.
In Tennessee, a primary residential parent's ability to relocate with his or her child - to another state or more than 50 miles away from the other parent within the state - is generally governed by Tenn. Code Ann. § 36-6-108 if any complaint or petition related to child custody has ever been filed in a Tennessee court.
If You're the Relocating Parent, You Must Take Action BEFORE You Move
A parent who desires to relocate with one or more minor children must take action PRIOR to the planned move. It is NOT acceptable to ask forgiveness rather than permission. You must send a legally sufficient notice of your intent to relocate to the other parent at least a certain amount of time in advance of the proposed move. The other parent is then legally entitled to object to the relocation within a certain period of time. Although the statute explains the procedure for sending the notice of intent to relocate, the consequences of making a mistake are so potentially problematic that it is best to have a lawyer's help in drafting and sending the notice. You do not want to find yourself in contempt of court for moving without following the appropriate procedure.
Further, if the other parent does object to the relocation in a timely manner, then you will need to file a petition to be allowed to relocate.
If You're the Non-Relocating Parent and You Object to the Relocation, You Must QUICKLY Object to the Move
In Tennessee, once a parent has been served with a notice of intent to relocate, that parent only has a very limited period of time to object to the move. The statute gives the objecting parent only 30 days after receiving the notice to object. However, if you want a lawyer's help in making your objection to the move (believe me - you do!), then you will want to seek help immediately rather than waiting until the last moment to see a lawyer.
If you do not object within the required time limit, the other parent WILL be allowed to move with the children, without further input from you. This is not a flexible deadline. Time is of the essence.
Permission to Relocate Is Given or Denied Based on a Best Interest Analysis
Prior to July 1, 2018, a parent objecting to a relocation faced a much more difficult burden of proof than he or she does under the current law.
The current law directs courts to conduct a best interests analysis to determine whether relocation is in a minor child's best interest or not. However, the factors the court will consider are different in this analysis than they would be for an initial custody determination. Specifically, the statute directs courts to consider the following factors when making a determination about best interest:
(A) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life;
(B) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
(C) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties;
(D) The child's preference, if the child is twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
(E) Whether there is an established pattern of conduct of the relocating parent, either to promote or thwart the relationship of the child and the non-relocating parent;
(F) Whether the relocation of the child will enhance the general quality of life for both the relocating parent and the child, including, but not limited to, financial or emotional benefit or educational opportunity;
(G) The reasons of each parent for seeking or opposing the relocation; and
(H) Any other factor affecting the best interest of the child, including those enumerated in § 36-6-106(a).
Your Permanent Parenting Plan Will Probably Have to Be Modified If a Parent Relocates
For obvious reasons, parenting time every other weekend is not going to work if you live in New York and your ex remains in Tennessee, but the Court will still want to make sure the non-relocating parent has plenty of parenting time. In many cases, this means that the non-relocating parent will get lots of summer and holiday parenting time to compensate for the loss of time.
The parental relocation statute provides that if the parents cannot agree on a new parenting plan, then the relocating parent has to seek a modification from the court. The parties will have to continue to operate under the existing parenting plan order until it is modified, so a relocating parent should file a petition to modify as soon as it is appropriate to do so under the facts of the case.
However, the modification of the plan is not a foregone conclusion. Technically, a parent could trigger the relocation statute by moving a short distance from the other parent to DeSoto County, Mississippi. In that case, the relocation might have little to no effect on a standard every other weekend parenting arrangement. On the other hand, if the non-relocating parent enjoyed substantial time during the school week, the parenting plan might need some rethinking in terms of getting the child to and from school.
For Long-Distance Relocations, Someone Will Have to Be Responsible for Travel Costs
Getting a child to and from a far-away state is not cheap. Flights, gas, and taking time off work for extended driving all cost money. For very small children, a parent may have to accompany them on flights, increasing the cost further. Add to this that parenting exchanges for long-distance parents often occur during high-volume holiday time periods, and travel can be a very expensive proposition indeed.
The relocation statute provides that "[t]he court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation. " Frequently considered "additional factors" include which parent relocated and which parent can better financially afford to pay for the transportation. The court may order one parent to pay all of the costs or may order the parties to split the costs, with each paying a certain percentage of the expenses.
Mediation Is Probably Required Before You Can Submit Your Relocation Issues to a Judge
If there is a preexisting parenting plan, and sometimes even if there is not, the court will ordinarily require the parents to submit to non-binding mediation prior to bringing their dispute into court. While this adds to the expense of the case for parties who do not resolve their disputes at mediation, those who are able to come to an agreement can work together to fashion a new parenting time schedule that protects the best interests of the minor children. Although our local judges are absolutely excellent, no one will ever know your children as well as you and your ex do, so if your ex is at all reasonable, it almost behooves you to try to work something out at mediation.