Parental Relocation Ruling Reversed By Tennessee Appellate Court

Parental relocation in Tennessee is governed by Tennessee Code Annotated 36-6-108 which states the following:

If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility.

The facts of Katja Ute (Franz) Buchanan v. Steven James Larry Buchanan are Katja Ute Parental Relocation(Mother) a German citizen, married Steven James Larry (Father) while he was stationed in Germany with the United States Army. The two moved to the United States, had one child, and subsequently divorced agreeing to a parenting plan designating Mother as the primary residential parent and awarding Father 122 days of parenting time each year.

Approximately five years after being divorced, Mother sent Father a letter notifying him of her intention to relocate to Germany with the child. The letter stated Mother had secured employment which would allow her and the child to have a better quality of life. The letter further told Father that he “may file a petition in opposition to Mother’s proposed relocation within 30 days of receipt of this notice.”

Father, representing himself without counsel, responded with a letter expressing his opposition to the child’s relocation and subsequently filed a petition opposing relocation. The petition, however, was filed outside the 30-day time period set forth in Tennessee Code Annotated 36-6-108. Mother moved to dismiss Father’s petition for failure to file it within 30 days of receipt of the notice of proposed relocation. However, Mother’s motion was denied with the court stating that the requirement that Father’s petition be filed within 30 days of receipt of notice of Mother’s intent to relocate was an “unreasonable burden on a pro se petitioner” due to Father not being an attorney. The trial court further stated, “It is unfair to require someone who’s child is going to be taken 4500 miles away only 30 days in which to hire an attorney and file a pleading and pay them a huge retainer fee.”

After a hearing, the trial court denied Mother’s proposed relocation, holding that her motive for relocating was vindictive and had no reasonable purpose. The trial court additionally adjusted the parenting plan increasing Father’s parenting time.

Mother appealed to The Tennessee Court Of Appeals At Nashville arguing that the trial court erred in failing to dismiss Father’s petition as it was not filed in a timely manner per statute.

After hearing oral arguments and reviewing the record, the Appellate Court concluded the following:

The record shows that Father received a certified letter on December 28, 2013, notifying him of Mother’s intended relocation and advising him that he “may file a petition in opposition to [Mother’s] proposed relocation within thirty (30) days of receipt of this notice.” Father waited until January 24, 2014, to write Mother’s attorney expressing his opposition to the move. It was not until after Mother filed her petition to alter visitation — in which she noted Father’s failure to timely file a petition in opposition gave her the right to relocate, pursuant to Tenn. Code Ann. §36-6-108(g) — that Father filed a petition in opposition, asking the court “to have sympathy due to me not having the finical [sic] means for counsel or the understanding of the Tennessee laws….”

The language of Tenn. Code Ann. § 36-6-108(g) is clear and mandatory. The record does not support the court’s determination that it was an “unreasonable burden” or “unfair” to apply the 30-day time limit to Father. Stating one’s opposition to a proposed move, without more, is not in compliance with the statute and is not sufficient to invoke the adjudicatory powers of the court. Moreover, whether Mother was prejudiced by Father’s failure to timely file the petition is not an appropriate consideration.

As such, finding that the petition opposing Mother’s relocation should have been dismissed, the Appellate Court reversed the trial court’s judgment and remanded the case for entry of a new parenting plan reflecting the relocation to Germany.

If you are embroiled in a relocation dispute, it’s imperative that you seek competent legal counsel to discuss your options as it relates to Tennessee law. Contact attorney Donna Wagner to schedule your consultation

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