Parental relocation is and always will be a significant issue in child custody so long as we have a mobile society.
Imagine this. The parents decide to “call it quits” on their marriage. That’s easy for them to decide. However, the next question is who will have custody of the minor children. At the time of the divorce, most couples are not considering the possibility that one of them will want to move to another state in the future. The hurt and disappointment that accompanies marital break-up overshadows such considerations (at least at that time).
However, sometime later circumstances change and one of the parents decides they want to move. In Tennessee if you are going to move over 50 miles from the current location there are some pretty specific steps you must follow if you are planning on moving. It is important to consult with an experienced child custody lawyer if this situation arises in your life.
The Tennessee Court of Appeals just considered this very case in Cassidy Aragon v. Reynaldo Aragon, Case #M2013-01962-COA-R3-CV. Cassidy Aragon and her husband Reynaldo were married for a total of about 4 years. During that time Cassidy gave birth to a baby girl who was approximately 3 years old at the time of the divorce. When they worked out the child custody provisions in the divorce papers they provided that both parties would have an equal number of days each year as “co-parenting time.”
Although they were living in Clarksville, Tennessee at the time of the divorce, a decision was made that Cassidy would take a job overseas as a translator. This way she could support the kids (she had one of her own separate from Reynaldo) and allow Reynaldo to finish college and get a nursing degree.
However, soon after Reynaldo became a nurse he decided he wanted to relocate to Tuscon, Arizona. “It’s easier to get a job there,” he said. His mom also lived there.
Because Tennessee law required Reynaldo to give 60 days notice to Cassidy if he was going to move out of state, he gave the notice. The battle began. Cassidy asked the court to stop the relocation of their child to Tuscon. Since due to Cassidy working overseas Reynaldo spent substantially more time with their daughter.
Interestingly, when the parent who spends “substantially more time” with the child decides to move, the burden of proof (the responsibility to persuade) shifts to the other parent. Therefore, Cassidy had to prove at least one of three things:
(1) the relocation does not have a reasonable purpose; or,
(2) the relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
(3) the parent’s motive for relocating 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.
If the opposing parent proves one of the three things above, then and only then, does the court consider what is in the best interests of the child. So proving one of those things is pretty important. As a general principle when a court considers issues relating to child custody, the best interests of the child are most important.
In this case, Cassidy sought to prove that the relocation does not have a reasonable purpose. She demonstrated to the court’s satisfaction that the relocation did not have a reasonable purpose. She was able to do that because Reynaldo had not sought employment in the Clarksville area. Apparently that was a huge factor with the judge. Once he made that finding, he named her the custodial parent and gave Reynaldo only 80 days of co-parenting time (visitation) each year. That’s a pretty big swing from over 50% of the time to down to 82 days.
Reynaldo’s child custody attorney appealed the case to the Tennessee Court of Appeals. There the court found that the trial court failed to make specific findings that it was in the best interests of the child to stay with her mother. The Court of Appeals refused to set aside the finding that the relocation did not serve a reasonable purpose. However, the court said that the trial court must make a specific findings that are required before the court could bar the relocation to Tuscon and directed the trial court to make those findings.
So here’s the take away:
1. If your ex-spouse all of a sudden changes informal “co-parenting time” be aware that a possible relocation may be in the works. She may be attempting to move into the situation where she spends substantially more time with the child than you do. That would change the burden of persuasion if a relocation is sought.
2. If you receive a notice of relocation, however informal, don’t sit on your rights. It would be bad if a court later determined that the “notice” was proper and you no longer had a right to contest the relocation.
3. Be attentive to what is said by your ex-spouse about the “why” of the relocation. This is information that your Maryville Divorce Lawyer will need to know in order to help you.
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