TBA Law Blog

Posted by: Marlene Moses & Manuel Russ on May 1, 2017

Journal Issue Date: May 2017

Journal Name: May 2017 - Vol. 53, No. 5

The ability of a parent to relocate his or her household, and more importantly his or her child, out of the jurisdiction of the court that entered the parenting plan is often a very contentious issue. The Tennessee Code devotes an entire section to the issue of relocation for this reason. Absent an agreement to modify the parenting schedule, if a parent wishes to move a minor child away from the other parent to another state, or to a location more than 50 miles away from the other parent in Tennessee, the parent requesting the relocation must seek leave of the court that entered the parenting plan to alter the visitation schedule and strictly comply with all steps required under Tenn. Code Ann. Sec. 36-6-108, including giving notice to the non-moving party at least 60 days prior to the move.[1]

The Code sets forth two different standards by which the trial court must make its determination, and the amount of time each parent spends with the minor child determines which standard applies in a particular case. On one hand, “if the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child.”[2] No presumption in favor of or against the request to relocate with the child arises under this standard, as such; the court must determine whether or not to permit relocation of the child based upon the best interests of the child. The court will consider all relevant factors including those factors found in Tenn. Code Ann. Sec. 36-6-106(a)(1)-(15).[3]

If the parties are not spending “substantially equal intervals of time with the child,” the party who has the “greater amount of time with the child” shall enjoy a presumption that the relocation is permissible unless the alternate parent is able to rebut that presumption by demonstrating to the court one of three factors.[4] The court will permit the relocation of a minor child unless the court finds: “(A) The relocation does not have a reasonable purpose; (B) 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 (C) The parent’s motive for relocating with 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.”[5] The parent opposing the relocation bears the burden of proving one of the three grounds for denying the relocation.[6]

In the event the non-moving party carries his or her burden and the court finds one of these three grounds to be present, the court will then “determine whether or not to permit relocation of the child based on the best interest of the child.” Such a decision may leave the finder of fact in a difficult quandary as there is a possibility that the court may feel the need to transfer the custody of the child to the alternate parent under certain circumstances.[7] An additional layer the trial court must consider in making its decision is the mandate that the trial court “shall consider the availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation, and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation” should the court determine that relocation is, in fact, permissible.[8]

Under either standard outlined in the Code, the trial court will frequently be required to make a determination about relocation based on the “best interests of the child” with reference to the same factors that are prescribed in making an initial custody determination.[9] In one situation, a parent might lose significant parenting time because he or she is unable to prevent a relocation of the other parent. In another, it is possible that a complete reversal of the visitation schedule is ordered by the trial court in order to maintain the “best interests of the child” depending on the individual facts of the particular case. Clearly, the stakes can be very high for either party.

Prior to reaching the best interests analysis, if the parents do not have substantially equal intervals of time, the trial court must first determine if any of the factors in Tenn. Code Ann. Sec. 36-6-108(d)(1) would potentially bar a relocation. The most subjective of the three possible reasons requiring that the relocation have a “reasonable purpose,” a term that has defied easy explanation in the past. However, a recent case from the latest term of the Tennessee Supreme Court will assist trial courts in making the determination of what is a reasonable purpose within the constructs of the statute moving forward.

In Aragon v. Aragon, the Tennessee Supreme Court amended its interpretation of what constitutes a “reasonable purpose” for relocation to a significant degree.[10] The case dealt with an arrangement where the parties did not have substantially equal parenting time and the primary parent, the father, sought to relocate with the parties’ daughters to Arizona, thus invoking an analysis under Tenn. Code Ann. Sec. 36-6-108(d)(1), as the mother alleged that the move had no “reasonable purpose.”[11] Ultimately, the trial court sided with the mother, determining that the move had no “reasonable purpose” as required under the statute. Then, the trial court conducted the further “best interests” analysis, and determined that it was in the best interests of the children to remain in Tennessee with their mother, since their father had already relocated to Arizona. Accordingly, the trial court ordered an alteration of the custody of the parties’ minor children, granting primary custody to the mother, a decision that was affirmed by the Court of Appeals.[12]

Upon revisiting the area of law, the Tennessee Supreme Court structured its ruling on the threshold issue of whether the father’s “purpose” in seeking relocation was “reasonable.” This issue was addressed previously by the court in Webster v. Webster, which interpreted “reasonable purpose” to be analogous with a “significant purpose” and one that is “substantial when weighed against the gravity of the loss of the non-custodial parent’s ability to participate fully in their children’s lives in a more meaningful way.”[13] The ruling in Aragon stated that the interpretation of the phrase “reasonable purpose” is not clearly or easily defined and consequently, the court looked to the legislative intent when drafting the statute in making its determination. The court concluded that “the statutory structure and legislative history both indicate an intent to make relocation cases relatively clear-cut, to permit the parent who has been spending the majority of the residential parenting time with the child to relocate with the child without court intervention, except in unusual cases in which the other parent proves that the move is vindictive, risks serious harm to the child, or has no reasonable purpose at all.”[14] The court reiterated that, while the determination of whether relocation is in the best interests of the child, takes into account many factors, the threshold requirement of demonstrating a reason to prevent the primary parent’s relocation only takes into account a limited number of reasons enumerated in Tenn. Code Ann. Sec. 36-6-108(d)(1), and they must be strictly interpreted.[15]

The Tennessee Supreme Court reversed the Court of Appeals and the trial court in Aragon v. Aragon, by determining that the father’s purported reason for relocating — that he could be with extended family, utilize them as a greater support system and had obtained a better work situation in Arizona — was a reasonable purpose pursuant to the statute. By doing so, the court overruled the opinion in Webster v. Webster with respect to its misinterpretation of “reasonable purpose,” as set forth in Tenn. Code Ann. Sec. 36-6-108. The court noted that the view on “reasonable purpose” taken by the court in Webster encouraged trial courts to consider evidence irrelevant to the proposed purpose of the move and more on the perceived fairness of the moving party’s decision to relocate overall or whether the relocation was in the child’s best interest. The court further noted that “the rigid structure of section 36-6-108 — in which best interest is reached only if and when the parent opposing the move proves one of the grounds — suggests that the reasonable purpose ground is not intended to be a guise under which the trial court may determine whether the parent’s decision to relocate is wise or fair or in the child’s best interest.”[16]

Aragon v. Aragon represents a significant shift in cases of this nature and provides clarity to both courts and practitioners alike regarding the issue of relocation. If you are the primary parent with the “greater” share of parenting time, you will be able to relocate as long as the alternate parent cannot demonstrate that there is “no reasonable purpose at all,” opening the door to many other legitimate purposes for moving that may not meet the elevated Webster standard of a “significant purpose” and one that is “substantial” in light of the parental rights of the alternate parent.

Now, returning to the plain language of the statute, the Supreme Court has signaled that a relocating parent with the majority of parenting time can do so with some certainty. This should offer more comfort to parents and family law practitioners when making decisions and rendering advice.


  1. Tenn. Code Ann. § 36-6-108(a) and (b).
  2. Tenn. Code Ann. § 36-6-108(c).
  3. Id. See Tenn. Code Ann. § 36-6-106(a)(1)-(15): (1) The strength, nature, and stability of the child's relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child; (2) Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child; (3) Refusal to attend a court-ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings; (4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care; (5) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities; (6) The love, affection and emotional ties existing between each parent and the child; (7) The emotional needs and developmental level of the child; (8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child; (9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives and mentors, as well as the child’s involvement with the child’s physical surroundings, school or other significant activities; (10) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; (11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; (12) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; (13) The reasonable preference of the child if 12 years of age or older; (14) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and (15) Any other factors deemed relevant by the court.
  4. Tenn. Code Ann. § 36-6-108(d)(1). Forty percent or less of custodial parenting time is not substantially equal parenting time. See Heilig v. Heilig, No. E201400586COAR3CV, 2015 WL 3654948, at *6 (Tenn. Ct. App. June 15, 2015). See also Kawatra v. Kawatra, No. M2003-01855-COA-R3CV, 2004 WL 1944135, at *1 (Tenn. Ct. App. Aug. 31, 2004), aff’d as modified, 182 S.W.3d 800 (Tenn. 2005).
  5. Tenn. Code Ann. § 36-6-108(d).
  6. Clark v. Clark, 2003 WL23094000, at *3 (Tenn. Ct. App. Dec. 20, 2003).
  7. Tenn. Code Ann. § 36-6-108(e).
  8. Tenn. Code Ann. § 36-6-108(f).
  9. Tenn. Code Ann. § 36-6-106(a). Footnote 3 Supra.
  10. Cassidy Lynne Aragon v. Reynaldo Manuel Aragon, No. M201402292SCR11CV, 2017 WL 1021962 (Tenn. Mar. 16, 2017).
  11. Id. at 2-8.
  12. Id. at 8-10.
  13. Webster v. Webster, No. W2005-01288-COA-R3-CV, 2006 WL 3008019, at *14 (Tenn. Ct. App. Oct. 24, 2006); Aaby v. Strange, 924 S.W.2d, 623, 631 (Tenn. 1996)
  14. Aragon v. Aragon, at 25.
  15. Id. at 26-27.
  16. Id. at 26.

Marlene Moses MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The National Board of Trial?Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.