Here’s the scenario Let’s say you’ve been divorced for a couple of years, and you have three children who live with you 50% of the time. Things have been going reasonably well, but now your dear old ex has remarried or found a new, better job, and wants to move somewhere far away. Such a move could have a big impact on your kids and the amount of time you get to be with them. You want to prevent that from happening.
Now, change the facts slightly. Everything is the same, except the children live with you only 30% of the time. But, you still want to prevent the proposed relocation.
In either of these situations, can you stop your former spouse from moving?
It depends. Many factors go into the mix when a court considers questions of parental relocation. But, that being said, you’re going to face a potentially harder time in the second fact pattern than in the first. Here’s why.
The parental relocation statute (T.C.A. 36-6-108) controls the determination whether a divorced person exercising parenting time may relocate outside the state or more than 50 miles from the other parent within Tennessee. When a parent opposes the other parent’s relocation, the first issue for the court to determine is whether the parties are actually spending “substantially equal intervals of time” with the child or children.
So, what does that mean? Does it mean exactly equal time? 50-50? Not necessarily. While there is no bright line test, something less than 50-50 time can qualify as “substantially equal.” Does the letter of your Parenting Plan control? Not necessarily.
In determining whether the parents are actually spending “substantially equal intervals of time,” the court will consider the residential schedule set forth in the parties’ Parenting Plan. But, the court will also consider additional time each parent has spent with the child that is not reflected in the Parenting Plan, as well as the failure of a parent to actually exercise his or her allotted parenting time.
Why does it matter? Because the standard of review will differ if less than “substantially equal intervals of time” have been exercised by each parent. Thus, T.C.A. 36-6-108(c) provides:
“(c) If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall determine whether or not to permit relocation of the child based upon the best interests of the child.”
But, T.C.A. 36-6-108(d)(1) imposes a heavier burden. It provides:
“If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. 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:
(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.”
The parent opposing the relocation bears the burden of proof to establish one of th0se three grounds. If the court finds one of the grounds to be present, “the court shall determine whether or not to permit relocation of the child based on the best interest of the child.” T.C.A. 36-6-108(c).
So, if you are the parent opposing relocation, and if you have been exercising less than “substantially equal intervals of time” with your children, you will have more hurdles to climb in trying to convince the court to prohibit the other parent from relocating.
This is not just an issue for parents who are already divorced. The possibility of a post-divorce relocation should be considered when a divorcing parent and his/her counsel are negotiating the Parenting Plan prior to the divorce being finalized. If you are concerned that your ex-to-be might want to move far away with your children at some time in the future, you should take steps to minimize that possibility before your divorce and Parenting Plan are finalized.