Father Richard Lee Thompson, Jr. appealed a trial court decision allowing Mother Annette Marie Thompson Bulick to relocate with their minor child, Anna Kristan Thompson. The trial court determined that the parents did not exercise substantially equal parenting time under Tennessee's Parental Relocation Statute (T.C.A. § 36-6-108). The parents were divorced in 1996, with the Final Decree of Divorce granting Mother physical custody and decision-making authority regarding the child, while providing Father with reasonable visitation rights. The original parenting schedule allocated 105 nights (28%) to Father and 260 nights (71.3%) to Mother. After some adjustments to the visitation, by 2003, Father was spending approximately 35.7% of the time with the child. Both parents have since remarried and have additional children. The trial court's judgment was affirmed by the Court of Appeals of Tennessee.
Father did not send a relocation letter as required by T.C.A. § 36-6-108 and failed to file any petitions regarding his relocation. Mother argues that this violation undermines Father’s objections to her relocation and demonstrates bad faith. Mother's husband received a job promotion necessitating a move from Memphis to White Pine, Tennessee, approximately six hours away. Father acknowledges that Mother informed him of her relocation plans before telling their child, and they collectively communicated this to the child.
Mother sent Father a formal relocation letter, which he received on May 23, 2003. On June 5, 2003, Father filed a petition opposing Mother's relocation. Subsequently, a series of motions and responses were filed by both parties, including Mother's counter-petition for parental relocation and increased child support on July 25, 2003. The trial court issued a consent order for mediation on July 24, 2003, and granted Father a temporary injunction against Mother's relocation on August 5, 2003, pending court approval.
On September 22, 2003, the trial court determined that Father did not have "substantially equal" parenting time with the child and lifted the injunction, allowing Mother to relocate to Morristown, Tennessee. A Permanent Parenting Plan was established on January 20, 2004, and a final order resolving the relocation dispute and child support issues was issued on March 10, 2004. Father appealed the final order on March 24, 2004, and engaged in additional procedural motions and hearings regarding the deposition of witnesses through May and June 2004.
On July 8, 2004, the trial court issued an order to strike or delete Robert Bulick's deposition from the appellate record. The father raised three issues for review regarding the trial court's determination that the parties did not spend "substantially equal" time with their minor child, as defined by Tennessee Code Annotated 36-6-108(c). The issues included: (1) whether the trial court erred in its reliance on a numerical percentage interpretation of "substantially equal," (2) whether it improperly relied on the Aaby v. Strange case instead of the Parental Relocation Statute, and (3) whether it failed to consider public policy that supports a liberal interpretation of "substantially equal." The mother raised a separate issue concerning the father's alleged unclean hands, arguing that he did not provide notice of his relocation to Olive Branch, Mississippi, as required by TCA 36-6-108. The unclean hands doctrine states that a party seeking equitable relief must come with clean hands; if found guilty of inequitable conduct related to their claim, they may be denied relief. However, in custody cases, the focus is on the child's welfare, which may override the application of the unclean hands doctrine. The court emphasized that decisions regarding custody should prioritize the best interest of the child over strict legal rights of the parties involved.
Mr. Thompson's failure to comply with the statute is acknowledged, but the primary concern remains the welfare and best interest of the minor child. In Tennessee, the 'unclean hands' doctrine does not preclude consideration of a child's welfare in legal petitions. The trial court appropriately allowed the hearing to proceed despite the 'unclean hands' allegation. The Relocation Statute (T.C.A. 36-6-108) governs parental relocation, stating that if parents share equal custody time and one wishes to relocate, the other parent has 30 days to file an objection. The court will decide on relocation based on the child's best interests, considering factors such as visitation rights, compliance with visitation arrangements, parental affection and care, continuity in the child's life, parental stability and health, the child's community and school record, the child's preferences (if 12 or older), any evidence of abuse, and the character of individuals residing with the parent. If parents do not share equal custody, the primary caregiver may relocate unless the court finds the relocation lacks reasonable purpose, poses a serious threat to the child, or is vindictive towards the non-custodial parent.
The trial court must first determine the actual time each parent spends with the child to apply the Relocation Statute correctly. If the parents spend substantially equal time with the child, subsection (c) applies, which does not create a presumption for or against relocation, focusing instead on the child's best interests. Conversely, subsection (d) governs when one parent spends more time with the child and proposes relocation, favoring the relocating parent unless specific criteria are met.
Tennessee courts lack definitive rules for assessing "substantially equal" time, but the case of Collins v. Coode outlines factors for consideration: custody and visitation orders, actual days spent with the child, utilization of residential time, the comparison period length, and individual circumstances. A twelve-month period is recommended for analysis to account for seasonal variations in visitation; if not feasible, the longest possible period should be used.
Custody decisions are fact-dependent, with de novo review applicable when a case is tried without a jury, presuming the trial court’s factual findings are correct unless evidence contradicts them. The father argued that the trial court improperly emphasized numerical percentages over a reasonable interpretation of "substantially equal." However, without clear parameters in the statute or case law, the trial court's reliance on numerical data was not deemed erroneous. The previous mutual agreement allocated 105 nights (28.7%) to the father and 260 nights (71.3%) to the mother, but the court also considered the increased visitation granted by the mother in the years leading up to the child's first grade.
The parties agree that during the expanded visitation period, Father spent five out of fourteen nights with the child, amounting to 35.7% of the time, while Mother spent 64.3%. The trial court's decision regarding the unequal parenting time is upheld, with no evidence suggesting an abuse of discretion. Father argues that the trial court wrongly relied on Aaby v. Strange instead of the Parental Relocation Statute, but the court acknowledged that the Statute takes precedence over prior case law. Despite referencing Aaby, the trial court applied the correct standard, confirming that the assessment of parenting time precedes the best interest evaluation.
Father cites Navarro v. Lamusga to argue for a broader interpretation of "substantially equal," but acknowledges that it does not distinguish between parents with equal time as mandated by Tennessee law. He contends that legitimate reasons for relocation should not hinder evaluating the impact on non-custodial parents. Tennessee's Relocation Statute, enacted in 1998, and prior cases have established that while moves can disrupt children's lives, they do not automatically justify a change in custody. The court, referencing Connell v. Connell and Collins v. Coode, finds no evidence indicating that Ms. Bulick's move would pose specific harm to the child. The trial court's ruling on parenting time is confirmed as consistent with T.C.A. 36-6-108(d).
Father bore the burden of proving one of the three factors under T.C.A. 36-6-108(d) to prevent Mother’s relocation with their child. These factors include: (1) the relocation lacking a reasonable purpose, (2) the relocation posing a specific and serious threat of harm to the child that outweighs the harm of changing custody, or (3) the relocation being motivated by a vindictive intent to obstruct visitation rights of the non-custodial parent. Mother’s proposed move to East Tennessee was deemed to have a reasonable purpose related to her husband’s promotion. There was insufficient evidence to suggest that the relocation posed a risk of harm to the child; Father acknowledged that while they disagreed on parenting decisions, Mother was not unfit. He claimed the move might disrupt the child’s community and family ties, but precedent established that moving alone does not warrant a custody change. There was also no vindictive motive identified for Mother’s relocation. Consequently, Father failed to meet the burden of proof under the Relocation Statute, allowing the trial court’s decision to permit the relocation to stand.
Regarding the appointment of a Guardian Ad Litem, the trial court's denial of Father’s motion was not an abuse of discretion. Under T.C.A. 36-6-112, a Guardian Ad Litem is appointed at the judge's discretion to advocate for a child's best interests, following Rule 40 of the Tennessee Rules of the Supreme Court. The trial court did not find that the parties shared substantially equal parenting time, thus not triggering a best interest analysis. Without allegations of abuse or neglect and given the lack of evidence that the relocation would significantly harm the child, the trial court's decision not to appoint a Guardian Ad Litem was deemed appropriate. The trial court's order was affirmed, with costs of the appeal awarded against Father.
