Relocation and Grandparent Cases in Tennessee

From The Mid-South Divorce Guide, chapters 25 through 26, by
William W. Jones IV, a Memphis family law attorney and Rule 31 Listed
Family Mediator licensed in Tennessee and Mississippi. This guide covers
Shelby, Tipton and Fayette Counties in Tennessee and DeSoto, Tate and
Tunica Counties in Mississippi.

Questions this page answers

• Can my ex move out of state with my child?
• What is the relocation notice requirement in Tennessee?
• Do grandparents have visitation rights in Tennessee?
• How do I object to a parent relocating?

Relocation

If you have a parenting plan and you want to move, or your co-parent
wants to move, this chapter matters enormously. It is also the area
where outdated advice is most dangerous, because Tennessee rewrote this
statute effective July 1, 2018, and the change was
fundamental.

What the old law did

Under the pre-2018 version of Tennessee Code Annotated section
36-6-108, the first question was whether the parents were actually
spending substantially equal intervals of time with the child.

If they were not, the parent with the majority of the time got a
presumption in favor of the move. The objecting parent
had to prove the relocation had no reasonable purpose, or posed a
specific serious threat of harm to the child, or was motivated by
vindictiveness. That was a hard burden, and majority-time parents
usually won.

What the law does now

That threshold test and that presumption are gone.

Now, if a parent objects, the court applies a straight best interest
analysis with no presumption for or against relocation,
regardless of how the parenting time was divided. The statute lists
factors including the nature and quality of the child’s relationship
with each parent, siblings, and other significant persons; the child’s
age, developmental stage, and needs and the likely impact of the move;
the feasibility of preserving the relationship with the non-relocating
parent given the logistics and financial circumstances; the child’s
preference if of sufficient age and maturity; whether the relocating
parent has a pattern of promoting or thwarting the relationship with the
other parent; whether the relocation will enhance the general quality of
life for both the relocating parent and the child; each parent’s reasons
for seeking or opposing the move; and any other factor relevant under
section 36-6-106(a).

The practical consequence is that relocation cases got much harder to
predict, and that any book, blog post, or lawyer telling you about the
substantially equal intervals test is working from a version of the law
that has been dead since 2018.

The procedure

Notice. The relocating parent must send written
notice by registered or certified mail at least sixty days
before the move, unless there are exigent circumstances
excusing it. The notice must state the intent to move, the location of
the new residence, the reasons for the move, and a statement that the
other parent may file a petition in opposition within thirty days of
receipt.

Objection. The other parent has thirty
days from receipt to file a petition opposing the relocation.
If nobody objects in time, the relocating parent may move.

Both of those deadlines are real. Miss the sixty day notice and you
have violated the statute and possibly the automatic injunction. Miss
the thirty day objection window and you may have lost your ability to
contest the move at all.

If you are thinking about moving, or you just received a notice, call
a lawyer this week. Not next month.

One more thing

The automatic injunction in Chapter 6 already
prohibits relocating the children out of Tennessee or more than fifty
miles from the marital home while the divorce is pending. This chapter
is about post-decree relocation. During the case, the answer is simpler.
You cannot.

Grandparents and Third
Parties

Tennessee grandparent visitation is governed by Tennessee Code
Annotated sections 36-6-306 and 36-6-307, and it is narrower than most
families expect.

The constitutional backdrop

In Troxel v. Granville, 530 U.S. 57 (2000), the
United States Supreme Court held that fit parents have a fundamental
constitutional right to direct the upbringing of their children, and
that a court cannot simply substitute a judge’s view of best interest
for a fit parent’s decision about who sees the child.

Tennessee’s statute is built to survive Troxel, which is why it has a
threshold you have to clear before best interest is even reached.

The two step framework

Step one. The gateway. A court can only hold a
hearing if specific circumstances exist. These include the death of a
parent, the parents being divorced, legally separated, or never married
to each other, a parent being missing for six months or more, another
state having ordered grandparent visitation, the child having lived with
the grandparent for twelve months or more before being removed, or a
significant existing relationship of twelve months or more having been
severed or severely curtailed by the parent. The custodial parent must
also be opposing or severely reducing visitation.

Step two. Substantial harm. Before ordering any
visitation, the court must find a danger of substantial
harm to the child from the loss or severe reduction of the
relationship. That can be shown where the relationship was so
significant that losing it is likely to cause severe emotional harm, or
where the grandparent was a primary caregiver, or where there is other
direct and substantial harm. The statute defines a significant existing
relationship with specific time thresholds.

Only after substantial harm is established does the court reach best
interest, which section 36-6-307 addresses with its own factor list.

What this means practically

Courts give great deference to a fit parent’s decision to limit
grandparent contact. Grandparents lose these cases regularly, and they
lose them not because judges do not value grandparents but because the
constitutional bar is deliberately high.

Where grandparents do win is where they were functionally raising the
child, or where a parent has died and the surviving parent cut off the
deceased parent’s family, and there is a real, documented, long-standing
relationship.

One update worth knowing. Effective April 11, 2024, section
36-6-306(c) was amended to require that court-ordered visitation be
sufficient contact to reasonably permit a strong and meaningful
relationship with the child. That closes off the practice of
granting technically-compliant but meaningless token visitation.

If you are a grandparent considering this, get a real evaluation of
your facts before you spend money. If you are a parent facing a
petition, do not assume you will lose.

Download the whole guide. All 35 chapters plus four blank client forms, complimentary, no email required. Download The Mid-South Divorce Guide (PDF)

Questions about your own situation? The Jones Law Firm, 5100 Poplar Ave, Suite 708, Memphis, TN 38137. Call (901) 761-5353.