Parenting after divorce: Relocating with a child

They are the facts of a case recently decided by the Tennessee Court of Appeals in Toyos v. Hammock, but it is a situation played out across the country every day. The mother and father were never married, but had a child together. Within days of the girl’s birth, the father petitioned the Juvenile Court to establish paternity, and when DNA tests confirmed his paternity, he petitioned the court for visitation. Ultimately an order was entered awarding custody to the mother, and granting the father visitation rights on alternating weekends, certain holidays, and several weeks during the summer. While the court’s opinion goes into great detail, suffice it to say that the relationship between the mother and the father was not always amicable.

Several years went by and the mother became engaged to another man, became pregnant, and notified the father of her intent to relocate with the child over 100 miles away from Memphis, Tennessee. The father immediately filed his objection to the planned relocation and moved to modify the court order to be named as the child’s primary residential parent.

How the Tennessee law applies:

Tennessee law requires that 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 parent relocating must give written notice to the other parent.

The appellate court laid out the two-step process that is involved when a person seeks a modification of an existing custody or visitation order. First, the parent seeking to modify an existing custody or visitation order must establish that a material, that is, significant, change in circumstances has occurred. While there are no firm, clear-cut criteria for determining when a material change occurs, the court outlined three questions to be considered:

  • Does the change affect the child's well-being in a meaningful way?
  • Were the changed circumstances reasonably anticipated when the underlying decree was entered?
  • Did the change occur after the entry of the order sought to be modified?

If proof of a material change cannot be established, a trial court should simply decline to change custody. In light the mother’s remarriage, birth of a child, and decision to relocate a significant distance from Memphis, all of which occurred after the decree had been entered, the appellate court found that a material change had been established.

The second prong of the test is whether a change in the designation of the primary residential parent from the mother to the father is in the child's best interest. In making that determination, Tennessee law provides that there is no presumption either for or against relocation if the mother and the father spend equal time with the child. However, if the parents do not spend approximately equal time, then the parent spending more time with the child may relocate unless the relocation is unreasonable, would threaten an identifiable, grave harm to the child that outweighs any threat from a change of custody, or the parent's motive for relocating is vindictive. What might constitute a specific and serious harm to the child is outlined in the statute, but, in this case, the court found that the mother had clearly spent more time parenting the child, was not vindictive in her motives for relocating, and no specific or serious harm had been shown.

The facts of every parent relocation case are necessarily different and anyone involved in such a situation should seek out the legal representation of a Tennessee attorney experienced in family law.