Visitation Issues in Military Divorces; and, Following a Divorce, Including Visitation Interference

Following the placement of a child or children after a divorce or an order of custody (or designation of a primary residential parent), the parent/custodian with whom the child or children primarily reside may decide to move with the children to another city or state.  Such intention often results in legal action.  The farther the move, the more intense the opposition will likely be because of the move's effect on visitation and the ability of the other parent to foster and maintain an appropriate relationship with his or her child or children. 

In 1998, the Tennessee General Assembly enacted Tenn.Code Ann. § 36-6-108 to provide parents and the courts with a framework for determining whether the move should be permitted.  Section 36-6-108 sets forth the law as it pertains to either parent's intent to move away with the children and it contains different decision-making standards depending upon the amount of time each parent spends with the children.

Section 36-6-108 embodies a legislative presumption in favor of a relocating custodial parent who spends substantially more time with the child than the non-custodial parent. ( i.e., the statute creates a preference for parents actually spending a greater amount of time with the child).  Where the parents are actually spending substantially equal amounts of time with the child, § 36-6-108(c) requires the courts to determine whether permitting the relocation is in the "child's best interests."  However, if a parent's actual time with the child is not substantially equal  to the primary residential parent's, the statute requires the courts to permit the primary residential parent to move away unless the other parent can prove:

(1) that the move does not have a reasonable purpose;
(2) that the move poses a specific and serious harm that outweighs the harm resulting from a change of custody; or,
(3) that the primary residential parent's decision to move is vindictive.

The parent opposing the relocation has the burden of proving one or more of these circumstances, and considerations of the child's best interests do not come into play until at least one of these circumstances is shown to exist.

As such, determinations regarding the amount of time the parents are spending with a child are not controlled by the custody and visitation provisions in the final divorce decree or the order of custody.  Instead, the determinations are based on the time each parent "actually" spends with the child.

Tenn.Code Ann. § 36-6-108

Due to the complexity of Section 36-6-108 addressed above, the statute is set forth below for your review and analysis.  Section 36-6-108 is as follows:  

a) If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent's last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:

(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice.

(b) Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (d). The court shall also consider the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. The 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.(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. The court shall consider all relevant factors including the following where applicable:

(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) 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 preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) 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.

(d) 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:

(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) 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. Specific and serious harm to the child includes, but is not limited to, the following:
(1) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(2) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(3) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(4) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(5) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place in this state, and such support system is not available at the proposed relocation site; or
(6) If the proposed relocation is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system or which otherwise presents a substantial risk of specific and serious harm to the child.

(e) If the court finds one (1) or more of the grounds designated in subsection (d), the court shall determine whether or not to permit relocation of the child based on the best interest of the child. If the court finds it is not in the best interests of the child to relocate as defined herein, but the parent with whom the child resides the majority of the time elects to relocate, the court shall make a custody determination and shall consider all relevant factors including the following where applicable:

(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) 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 preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) 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 court shall consider the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. The 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.

(f) Nothing in this section shall prohibit either parent from petitioning the court at any time to address issues, (such as, but not limited to visitation), other than a change of custody related to the move. In the event no petition in opposition to a proposed relocation is filed within thirty (30) days of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.

(g) It is the legislative intent that the gender of the parent who seeks to relocate for the reason of career, educational, professional, or job opportunities, or otherwise, shall not be a factor in favor or against the relocation of such parent with the child.

If we may be of assistance to you in addressing any questions and/or concerns you may have regarding a proposed relocation with your child or children, and your legal rights,  please contact any of our domestic attorneys.

JMMiller@batsonnolan.com