Last year, the General Assembly dramatically altered the legal requirements in parental relocation cases which apply when one parent desires to move with a child out-of-state or more than 50 miles from the other parent.
The current parental relocation law is not well-drafted. For example, at first glance, it appears that the law only applies after a permanent parenting plan or order has been entered; however, a later subsection of the law indicates that the new relocation law applies (i) when a petition related to child custody has been filed, other than a divorce complaint, and (ii) after a divorce complaint has been filed.
Based on how the parental relocation law is drafted, our view at Crocker Carter Hall is that the relocating parent should comply with the relocation law in three scenarios: (i) during a divorce proceeding, (ii) during a child custody proceeding, or (iii) after a divorce or child custody order has been entered.
First, the law requires the relocating parent to send a notice to the other parent by registered or certified mail at least 60 days before the move. The notice must contain the following:
- Statement of intent to move;
- Location of proposed new residence;
- Reasons for the proposed relocation; and
- Statement that absent agreement between the parents or an objection by the non-relocating parent within 30 days of the date notice is sent by registered or certified mail, the relocating parent will be permitted to relocate by law.
After the required notice is sent, the parents have 30 days to agree to a new parenting schedule or the non-relocating parent can object to the relocation within that 30 days. If a new parenting schedule is agreed upon, it should be signed and filed with the court. The statute does not define how the non-relocating parent should object to the relocation, but the best practice would be to file a motion with the court within 30 days from the date the relocation notice was sent.
If the parents cannot agree on a new parenting schedule or the non-relocating parent does not object within 30 days the relocation, the statue requires the relocating parent to file a petition with the court to approve the relocation. Then, the non-relocating parent has 30 days to file a response in opposition to the petition for relocation. If the non-relocating parent does not file a response in opposition, then the relocating parent shall be permitted to relocate with the child.
In our experience at Crocker Carter Hall, it is better for the relocating parent to send the relocation notice letter to the other parent and file a petition to approve the relocation at the same time. On the other hand, for the non-relocating parent, our view is that the non-relocating parent should object to the relocation by filing a petition in opposition with court as soon as the non-relocating parent is aware of a possible relocation.
The new parental relocation law dramatically changed the legal standard for the court to consider when faced with parental relocation litigation. The court must determine whether relocation is in the best interest of the child by considering the following factors:
- 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;
- 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;
- 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;
- 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;
- 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;
- 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;
- The reasons of each parent for seeking or opposing the relocation; and
- Any other factor affecting the best interest of the child, including those enumerated in § 36-6-106(a), which are:
- The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
- Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
- Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
- The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
- The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
- The love, affection, and emotional ties existing between each parent and the child;
- The emotional needs and developmental level of the child;
- The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
- The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
- The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
- Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
- The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
- The reasonable preference of the child if 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;
- Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
- Any other factors deemed relevant by the court.
Some of the relocation factors overlap with the factors usually considered in making custody determinations, and the new parental relocation statute is not limited to only the listed factors.
If the court decides that relocation is in the best interest of the minor child, the law requires the court to modify the permanent parenting plan to account for the distance between the parents.
On the other hand, if the court decides that relocation is not in the best interest of the minor child, the court is required to deny the petition for relocation but enter a modified parenting plan based on the factors in TCA 36-6-106(a) that only becomes effective if the parent proposing to relocate actually does so.
Whether the court approves or denies the relocation, in fashioning a parenting plan, the law requires the court to consider and utilize available alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court is also required to assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered. The law also gives the court the discretion to award either parent to recover attorney fees and litigation expenses from the other parent.
At Crocker Carter Hall, our attorneys have extensive experience handling parental relocation cases and navigating the legal requirements required by the law. Contact our office if you need help with parental relocation.