Breeding & Henry, LLC

Significant amendment to Tennessee's statutes concerning child custody and visitation

In April of 2016, the Tennessee General Assembly made a significant amendment to Tennessee's statutes concerning significant amendment to Tennessee's statutes concerning child custody and visitation, specifically in regard to parental relocation. Tennessee Code Annotated Section 36-6-108 is the controlling statute concerning when a parent may "relocate," that is move out of state, or at least 50 miles away from the other parent. Prior to this new amendment, TCA 36-6-108(a) merely listed requirements for when "a parent who is spending intervals of time...." decides to relocate. After the amendment, however, additional language has been added that now requires custody or co-parenting to be "established by the entry of a permanent parenting plan or final order..." in order for the statute to be applicable.

This amendment essentially codified existing Tennessee case law that has determined the relocation statute does not apply to situations where a court has not already made an initial custody decision. In a relatively recent case, Summers v. Layne, the Tennessee Court of Appeals reiterated this point, and emphasized that temporary parenting agreements are not considered to be "initial custody determinations." Summers v. Layne, No. M2014-01324-COA-R3-CV, 2015 WL 1946163, at *1, *2 (Tenn. Ct. App. April 29, 2015). Rather, a permanent parenting plan or final order must be entered for the relocation statute to apply. Id. In cases where the relocation statute does not apply, Tennessee courts have concluded that a "best interests [of the child] analysis" must be applied to determine the primary residential parent due to the absence of any initial custody determination. Id. at *3.

Going forward, this significant change to the law concerning child custody and relocation means that it may likely be even more beneficial for separated parents or custodians to obtain counsel to formulate some sort of permanent parenting agreement. Given the amendment to the relocation statute, only the entry of a permanent parenting plan or custody agreement will require that notice be given before relocating. This can save not only a substantial legal headache in the event of an unexpected or surprise move, but can prevent one parent from threatening or questioning the other's visitation simply by moving.

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