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Tennessee Court Discusses Procedural Notice Requirements to Relocate with Children
Posted by Martin Heller Potempa & Sheppard, PLLC on August 3, 2016
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In some cases, couples sharing custody of their children may be faced with unexpected and difficult circumstances, such as the relocation of one of the parents. In McDonough v. McDonough (Tenn. Ct. App. May 26, 2016), the Court of Appeals of Tennessee decided a child custody issue involving a request by the father to relocate to Arizona with the parties’ three minor children. The father brought the appeal after the trial court denied his petition to relocate with the children and granted the mother primary residential custody.
In McDonough, the parties divorced in 2012, and the mother was initially named as the primary residential parent, with the father granted 120 days per year with the children. In 2014, the trial court modified the permanent parenting plan and entered an order granting the parties equal parenting time with the children. The court also designated the father as the primary residential parent. The father subsequently received orders from the United States Army requiring him to relocate to Arizona. The father then filed a petition seeking to modify the permanent parenting plan to allow him to relocate with the children. The mother filed a response opposing the relocation. The trial court denied the father’s petition, granted the mother custody, and entered a new permanent parenting plan. On appeal, the father argued that the mother’s counter-petition was not filed timely, and because of this alleged error, the trial court erred in not allowing him to relocate with his children.
In Tennessee, if a parent wishes to relocate outside the state, or move more than 50 miles from the other parent within the state, the relocating parent is required to send a notice to the other parent at the other parent’s last known address by registered or certified mail. The notice must be mailed 60 days prior to the move and inform the other parent of his or her intent to move, the location of the proposed new residence, the reasons for the relocation, and a notice that the other parent may file a petition in opposition to the move within 30 days of receipt of the notice. In addition, if the relocating parent seeks to move with the child, the other parent may file a petition in opposition. The court will determine whether or not to permit relocation with the child based upon the best interests of the child, and in consideration of all relevant and statutory factors.
In McDonough, the father sent a letter to the mother by certified mail, but it was returned unopened. On appeal, the court found that while the father did send a letter to the mother by certified mail, he failed to prove that the content of the letter contained the notice required by statute. Since the letter was sealed and unopened, the trial court did not consider it when making its decision. The appeals court, in turn, explained that it could not consider evidence that was not presented to the trial court. In addition, the father presented no evidence that the mother intentionally avoided receipt of the letter. As a result, the court held that the father failed to meet his burden to prove that notice was sent, and it affirmed the ruling.
Enlisting the assistance of an experienced family law attorney can help protect your rights in divorce and child custody proceedings. At Martin Heller Potempa & Sheppard, our Nashville child custody attorneys are committed to furthering the interests of our clients. We represent individuals and families in a range of issues, including adoption, child support and custody, relocation, and more. To confer with one of our dedicated attorneys, call Martin Heller Potempa & Sheppard at (615) 800-7096 or contact us online.
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