Facts of the Case

After sixteen years of marriage, these parties divorced. During the divorce process, the parents were able to reach an agreement as to their parenting schedule. The Mother was designated the Primary Residential Parent and the Father was granted 122 days of parenting time with the minor child each year.

After just one year, the Mother sent the Father a notice of relocation. This notice set forth the Mother’s intention to move to Claifornia, with the parties’ child, so that the Mother could attend school for marine biology. Father then filed a petition in opposition to the proposed relocation, and Father requested that the Court designate him the Primary Residential Parent.

After she gave notice, but before the relocation, the Mother married a man from California that she had been dating.

At trial, the Father presented testimony of an expert witness who stated her opininon that moving the minor child to California would cause substantial emotional harm:

I believe it would cause her substantial emotional harm to move to California. Tennessee is her home. Her father is here. Her friends are here. Her school is here. She has established real – her teachers, her brother – real connections with people that, in essence, she would have to give up for long extended periods of time if she were to move to California.

The Mother did not hire an expert, and the Court was greatly influenced by the testimony of the Father’s expert witness. Upon that testimony, the Court found that it would nto be in the child’s best interest to have her relocated to California. The court found that this would cause a specific threat of serious harm to the child’s well-being.

The Mother appealed this decision.

On Appeal

The Court of Appeals affirmed the trial court’s decision.

When parents divorce and the Primary Residential Parent desires to relocate more than 100 miles away within the state, as in this case, the relocating parent must notify the other parent. The other parent can then choose to file a petition, within thirty days of receiving the notice, opposing the removal of their child by the relocating parent. Tennessee law establishes that the parent spending the greater amount of time with the child shall be permitted to relocate with the 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 hte non-custodial parent or the parent spending less time with the child.

If the court finds one of these grounds to exist, then the Court shall determine whether or not to permit relocation of the child based on the best interest of the child. If the Court finds it is not in the best interests of the child to relocate, but the parent with whom the child resides the majority of the time still chooses to relocate, the court shall make a custody determination and consider all relevant factors.

The Mother argued that the Court should have allowed her to move, as they allowed a mother to move with her children more than 100 miles away in Mann v. Mann. However, the Court of Appeals noted that, in the Mann case, there was no expert testimony presented to establish that the children would suffer substantial harm.

One thing of note in this case is that the Father hired an expert witness (psychologist) to testify about the affect on the child if she were forced to move to California, nearly 2,000 miles away. Keep in mind how the expert testimony swayed the court. In the Mann case, where there was no expert, the court allowed the relocation with the child. However, in this case, where the Father put together evidence proving a harmful affect on the child, the court changed the Primary Residential Parent.

Johnson v. Johnson (No. M2012-00900-COA-R3-CV; Filed January 31, 2013)

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