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Tennessee Father Successfully Appeals Court Order Denying Out-of-State Relocation with His Children
Posted by Martin Heller Potempa & Sheppard, PLLC on February 1, 2017
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In most child custody cases, a parent sharing custody may not relocate with the children more than 50 miles from the other parent or outside the state, unless expressly authorized by the court. In a recent case, the Court of Appeals of Tennessee addressed the burden of proof issue regarding a father’s petition to relocate to Oklahoma with his minor children. The trial court concluded that since he was the petitioner, the father bore the burden of proof on whether the move was for a reasonable purpose. The trial court ultimately denied the request, and the father appealed.
In the case, the parties’ parenting plan designated the father as the primary residential parent of the children. The father notified the mother of his intention to relocate with the children to Oklahoma to work on a farm owned by his relatives, and he filed a petition with the court. The mother subsequently filed an objection, contending that there was no reasonable purpose for the move.
In Tennessee, the parent spending the greater amount of time with the child may relocate over an objection filed by the other parent, unless the court finds that the relocation does not have a reasonable purpose, it would pose a threat of specific and serious harm to the child, or the parent’s motive for relocating is intended to defeat or deter the visitation rights of the parent spending less time with the child. However, even if one of the grounds is proven, the court may still permit relocation based on the best interest of the child.
Generally, the party who files a petition seeking relief has the burden of proof. Likewise, the non-moving parent filing an objection to a notice of relocation under the Parental Relocation Statute would have the burden of proof. In this case, the father filed a petition to relocate after the mother did not respond immediately to his notice, although she did file an objection with the court within the 30-day time limit. The trial court erroneously concluded that the father had the burden of proof as the party who initially filed the petition.
The appeals court explained that if the relocating parent spends the greater amount of time with the child, the parent opposed to the relocation bears the burden of proving one of the three statutory grounds listed above, regardless of who files the petition. Accordingly, the appeals court reversed the decision denying relocation and remanded for consideration of the matter in light of the mother’s burden of proof. The appeals court also noted that on remand, if the trial court determines the mother has satisfied her burden, it must further consider whether relocation is nonetheless in the children’s best interest.
If you have concerns regarding your parenting rights, the Nashville attorneys at Martin Heller Potempa & Sheppard are prepared to answer your questions. Our experienced divorce lawyers provide comprehensive legal advice and representation to those struggling with spousal and child support issues, property distribution, custody matters, and adoption. Make your appointment today by contacting Martin Heller Potempa & Sheppard at (615) 800-7096 or online.
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