Caton v. Caton, (Tenn.Ct.App. filed 11/16/2018).
About a year after the parties’ divorce, the mother, who had been named primary residential parent, decided to move to Murfreesboro. Alleging that her move constituted a material change in circumstance, she filed a petition in the divorce court requesting a change in the residential parenting schedule. Because she planned to move less than fifty miles, the mother asserted that the parental relocation statute did not apply. But, in case the court disagreed, the mother also asked the court to approve the move. In response, the father filed a counter-petition seeking to change either the primary residential parent designation or the parenting schedule. After a hearing, the trial court denied both modification petitions. And although the court agreed that the parental relocation statute did not apply, the court ordered the mother to remain in Sumner County, Tennessee. The mother has appealed the court’s restriction on her ability to move.
On June 11, 2013, the General Sessions Court for Sumner County, Tennessee, granted mother a divorce. As part of the divorce decree, the court approved and incorporated an agreed permanent parenting plan. The plan named Mother as the primary residential parent and granted 209 days of residential parenting time. Father received 156 days under the plan.
On June 5, 2014, Mother petitioned to modify the parenting plan. The petition alleged a material change in circumstance had arisen because of Mother’s pending move to Murfreesboro. And although she planned to move less than fifty miles, the increased distance between the parents’ residences would necessitate a modification of the residential parenting schedule. See Tenn. Code Ann. § 36-6-101(a)(2)(C) (2010). Alternatively, the petition alleged that, if the parental relocation statute applied, Mother’s move had a reasonable purpose, was not vindictive, and did not pose a threat of harm to the children. See Tenn. Code Ann. § 36-6-108(d) (Supp. 2013).
Father opposed Mother’s requested modification as not in the best interest of the children. He further claimed that Mother’s purpose for moving was both unreasonable and vindictive. And Father also asked the court to modify the permanent parenting plan. In his counter-petition, Father requested to be named primary residential parent if Mother moved. In the alternative, he sought a modification of the residential parenting schedule because the plan had become unworkable “due to the Mother’s change in shift schedule at the hospital where she work[ed].” After an evidentiary hearing, the court denied both petitions. Although the court ruled that the parental relocation statute was inapplicable, the court treated Mother’s modification petition as a request for permission to move. The court determined that Mother’s stated reason for the move “did not trump over the Father’s rights of him [sic] being active with the children.” And the court prohibited Mother from “relocating from Sumner County as such as [sic] relocation will not be in the best interests of the children.”
COURT OF APPEALS:
There was no legal basis for restricting Mother’s ability to move. The permanent parenting plan did not restrict either parent from relocating. And it is undisputed that the parental relocation statute in effect at the time did not apply to Mother’s proposed move.
Even were it applicable, the parental relocation statute does not grant courts the “authority to dictate where divorced parents must live.” The statute only provides the court with a framework for protecting the noncustodial parent’s visitation rights. While the court may modify the custody arrangement, the court has no authority to prevent a parent from moving. See Tenn. Code Ann. § 36-6-108(e) (“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 . . . .”)