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Tennessee Court of Appeals Denies Relocation of Child Request by Primary Residential Parent
Posted by Martin Heller Potempa & Sheppard, PLLC on October 19, 2015
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In a newly released opinion, the Tennessee Court of Appeals reviewed a family law decision denying a request by the father, who is the primary residential parent, to relocate to Wisconsin with the parties’ minor son. In Mackey v. Mayfield (Tenn. App. Oct. 8, 2015), the mother filed a petition in opposition to the relocation, alleging that she had not received proper notice of the father’s intent to relocate, as required by Tenn. Code Ann. § 36-6-108(a). The mother also contended that the proposed relocation was not for a reasonable purpose and not in the child’s best interest and that a change in circumstances had occurred and the parenting plan was no longer in the child’s best interest. Following a two-day trial, the court found in favor of the mother and entered an order prohibiting the father from relocating with the child and designating the mother as a primary residential parent. The father appealed that decision.
When a parent seeks to relocate with his minor child outside Tennessee, that parent must give written notice to the other parent of the proposed move, the location of the new residence, and the reasons for the move, 60 days before the move. If the other parent does not file a petition in opposition to the relocation within 30 days of receiving the notice, the relocating parent will be allowed to move without any further inquiry by the court. In Mackey, the court of appeals affirmed the trial court’s determination that the mother’s petition in opposition was not barred as untimely filed.
When a petition in opposition to the relocation is filed, the court first determines the amount of time the relocating parent spends with the child. If the relocating parent spends the majority of time with the child, as in Mackey, a statutory presumption in favor of the relocation request arises. In order to rebut this presumption, the opposing parent, here, the mother, must then establish that the relocation does not have a reasonable purpose, the relocation would pose a specific and serious threat of harm to the child, or the parent’s motive for relocating is vindictive. If any of these three grounds is established, the court then determines whether relocation is in the child’s best interest.
In Mackey, the appeal court found that the planned relocation did not have a reasonable purpose. The court explained that while the father’s reasons for relocation, to live with his wife in Wisconsin because she needed to care for her mother, and so he could pursue improved economic opportunities, could, under certain circumstances, form the basis for a reasonable purpose, the testimony of the father and his wife lacked credibility, and there was no firm job offer or proof of better job opportunities. The court further found that the move was not in the best interest of the child because Tennessee provided the child with more stability than Wisconsin, the child had formed relationships with relatives of both parents who lived nearby, and the father could not foster the relationship between the mother and the child from Wisconsin.
In any court matter involving your child, you have the right to legal representation. At the Nashville firm of Martin Heller Potempa & Sheppard, our experienced attorneys regularly handle a variety of family law issues involving relocation, visitation rights, parental custody, and more, as well as estate and personal injury cases. To discuss your case with one of our attorneys, contact us at (615) 800-7096 or online.
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