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 mid-December 2016. 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 right 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.
If You're the Non-Relocating Parent and You Object to the Relocation, You Must QUICKLY File a Petition Opposing 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 file a petition with the court objecting to the move. The statute gives the objecting parent only 30 days after receiving the notice to file the petition objecting to the move. However, if you want a lawyer's help in drafting the petition (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 file your petition 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.
Getting Permission to Relocate Is Easier, But Not Guaranteed, If One Parent Spends Substantially More Time with the Children Than the Other Parent
If the Parents Do NOT Spend Substantially Equal Time with the Children
Parents who do not spend "substantially equal intervals of time" have a different relocation standard than those who do. There are two "legal hurdles" to jump for such a parent, rather than just one.
A parent who spends substantially more time with the children will ordinarily be allowed to relocate unless the other parent can prove one of the following:
(A) The relocation does not have a reasonable purpose;
(B) 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
(C) 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.
If the court determines that A, B, or C above applies, then the court will will undertake a best interests analysis (also called a "comparative fitness test") to determine which parent is the better primary residential parent for the children. This is the same test the court applies in making an initial custody determination.
If the Parents DO Spend Substantially Equal Time with the Children
Parents who spend "substantially equal intervals of time" with their minor children are less likely to be allowed to relocate. For these parents, the court will undertake a best interests analysis to determine which parent is the better primary residential parent for the children. This is the same test the court applies in making an initial custody determination.
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.