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Citation: 18 Mem. St. U. L. Rev. 399 1987-1988
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Best Interest on the Move: Standards
for Custodial Removal of Children
from Tennessee
A.
DARBY DICKERSON*
W. DAVID STALNAKER**
"Deciding what is best for the child poses a question no less
ultimate than the purposes and values of life
I.
INTRODUCTION
One dilemma faced by many courts is whether a custodial2 parent
may remove 3 her child from the jurisdiction where the noncustodial
parent resides. 4 Few legal situations are as agonizing or complicated
* Law Clerk, The Honorable Harry W. Wellford, Sixth Circuit Court of Appeals.
Member, State Bar of Texas. B.A. 1984; M.A. 1985, The College of William and Mary;
J.D. 1988, Vanderbilt University.
**
B.A. 1984, Clemson University; J.D. candidate 1989; M.B.A. candidate 1989,
Vanderbilt University.
The Authors would like to thank Associate Professor Margaret Howard of Vanderbilt
University for her comments to earlier drafts of this Article, and Judge William C. Koch,
Jr., Judge Muriel Robinson, and Nashville attorney John D. Kitch for sharing their insights
on this very difficult area of the law.
An earlier draft of this Article was awarded the Weldon B. White prize in May 1988.
This prize is presented annually by the faculty of Vanderbilt Law School to the best paper
on an aspect of Tennessee law. In addition, an abridged version of Part III was awarded
first place in the Tennessee Family Law Letter essay contest.
1. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 LAW & CONTEMP. PROBS., Summer 1975, at 226, 229.
2. Because 90% of children living in one-parent homes reside with their mothers,
see Bane & Weiss, Alone Together, AM. DaMoORAP'mcs, May 1980, at 11, the "custodial
parent" will be referred to as "she" and the "noncustodial parent" will be referred to as
"he." This usage does not necessarily reflect a statutory preference for awarding custody
of minor children to the mother. See, e.g., TENN. CODE ANN. § 36-6-101(d) (1988) (asserting
that "the gender of the party seeking custody shall not give rise to a presumption of parental
fitness or cause a presumption in favor or against the award of custody to such party"
unless the custody of a child of tender years is involved).
3. This Article discusses permanent removals only. Temporary removals, such as outof-state vacations, are not considered.
4. See generally Handschu, Custodial Removal: May a Custodian Leave the Jurisdiction with the Child? A Review and Recommendations, 8 WOMEN's RIGHTS L. RPTr. 247
(1985); Spitzer, Moving and Storage of Postdivorce Children: Relocation, the Constitution,
and the Courts, 1985 A~iz. ST. L.J. 1.
Memphis State University Law Review
[Vol. 18
as child custody disputes, and removal cases are no exception. The
intensity and variety of competing interests make removal cases exceedingly difficult to analyze. Unfortunately, in our highly mobile'
and divorce-ridden 6 society, disputes concerning custodial removal
are prevalent and, therefore, deserve in-depth examination.
A move by the custodial parent may inhibit visitation 7 and
motivate the noncustodial parent to challenge judicially the
5. Demographic surveys indicate that residential instability is the rule among divorced
mothers: 75016 move at least once after the dissolution. Of those divorced mothers who
move once, well over half move a second time. Bane & Weiss, supra note 2, at 11-12.
Custodial parents move for a variety of reasons: to seek new career opportunities, see,
e.g., Schoonover v. Schoonover, No. 613, slip. op. (LEXIS) at 6, 13 TAM 7-16 (Tenn. Ct.
App. Jan. 14, 1988) (LEXIS, States library, Tenn. App. file) (mother desired to move to
Wisconsin, her native state, to accept a better teaching position and to be near relatives);
Neeley v. Neeley, Bedford Equity,. 10 TAM 14-10 (Tenn. Ct. App. Mar. 7, 1985) (mother
proposed to move from Bedford County to Davidson County to train for a position with
the local police force); Vann v. Vann, No. CA 108, 9 TAM 39-24 (Tenn. Ct. App. Aug.
3, 1984) (LEXIS, States library, Tenn. App. file) (mother had secured a job in Texas and
could not find comparable employment in Tennessee); to fulfll job-related responsibilities,
see, e.g., Hayes v. Hayes, No. 54, 12 TAM 23-16 (Tenn. Ct. App. Apr. 24, 1987) (1987
Westlaw 25384) (employer of 15 years transferred mother from Nashville to Memphis); see
also Nichols v. Nichols, No. 88-139-II (Tenn. Ct. App. Sept. 23, 1988) (1988 Westlaw 97230)
(mother moved from Tennessee to Arizona to seek new position with Veteran's Administration, her current employer, and to be near her boyfriend); to accommodate a new spouse,
see, e.g., Rogero v. Pitt, 759 S.W.2d 109 (Tenn. 1988) (mother's new fiance lived and owned
a business in Dayton, Ohio); Seymour v. Seymour, Shelby Equity No. 37, No. D11852-2
(Tenn. Ct. App. Oct. 1, 1987) (LEXIS, States library, Tenn. App. file) (mother's new
husband accepted employment in Virginia) (permission to appeal granted Feb. 29, 1988);
to be near relatives, see, e.g., Dodd v. Dodd, 737 S.W.2d 286 (Tenn. Ct. App. 1987); Erk
v. Erk, No. 9357, 12 TAM 2-6 (Tenn. Ct. App. Nov. 26, 1986) (1986 Westlaw 13255);
Walker v. Walker, 656 S.W.2d 11 (Tenn. Ct. App. 1983); or to avoid seeing a former
spouse, see, e.g., Arnold v. Gouvitsa, 735 S.W.2d 458, 462 (Tenn. Ct. App. 1987) (mother
moved the children to California because she suspected that the father had sexually abused
the children).
6. A 1986 study revealed that over 14 million children -nearly one in four-live in
single-parent homes. Of this number, two-thirds are children whose parents have divorced
or separated. One-ParentFamilies Up, Census Says, The Tennessean, Jan. 21, 1988, at 5A,
col. 3 (presenting data released by the United States Census Bureau's Marriage and Family
Statistics division); see Mann, Rearing Children of Divorce, Wash. Post, Oct. 15, 1986,
Metro sec., at C3 (reporting that in 1983, 23% of all children in the United States lived
in single-parent households and that in 91% of these cases the mother had custody); see
also TENNESSEE STATIsTIcAL ABSTRACT 1987 652 (B. Vickers ed. 1986) (indicating that well
over 30,000 Tennessee couples were divorced in 1983).
7. See Note, Visitation Rights: Providing Adequate Protectionfor the Noncustodial
Parent, 3 CARDozo L. REv. 431 (1982). The commentator suggests that problems faced by
a noncustodial parent whose child is removed from the jurisdiction include: (1) incurring
increased transportation and communication costs; (2) foregoing spontaneous visits due to
distance; (3) losing involvement in the day-to-day activities of the child; and (4) possibly
not being able to locate the child. Id. at 436-37 & n.33.
1988]
Best Interest on the Move
custodian's right to remove the child from the jurisdiction.8 Courts9
and legislatures 0 across the country have wrestled with the problem of custodial removal. Although the debate has produced a
broad spectrum of possible solutions, most agree that the outcome
of removal suits hinges on whether the proposed move promotes
the best interest of the child."
This Article focuses on the analysis employed by Tennessee courts
that have addressed the custodial removal issue. 2 Part II discusses
8. See, e.g., Schoonover, No. 613, slip. op. (LEXIS) at 2, 3, 13 TAM 7-16; Smith
v. Capps, Weakly Equity No. 3, 12 TAM 24-9 (Tenn. Ct. App. Apr. 28, 1987) (1987 Westlaw
10088); Walker, 656 S.W.2d at 11.
The noncustodial parent in a removal suit may argue that he has a constitutional right
to rear and nurture his children and that this right would be violated if the children were
removed from the jurisdiction. According to the United States Supreme Court, "[F]reedom
of personal choice in matters of family life is a fundamental liberty interest." Santosky v.
Kramer, 455 U.S. 745, 753 (1982). This right is grounded in the due process clauses of the
fifth and fourteenth amendments and is an extension of the individual's right to privacy.
See, e.g., Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816,
842-43 (1977) (indicating that family rights have been afforded both substantive and procedural protection under the fourteenth amendment); Franz v. United States, 707 F.2d 582,
607 (D.C. Cir. 1983) (equating deprivation of the father's visitation rights with a deprivation
of his fundamental liberty interest in maintaining contact with his children); Entwistle v.
Entwistle, 61 A.D.2d 380, 402 N.Y.S.2d 213 (1978) (insisting that the right of the noncustodial parent to visitation is embodied in the constitutional right to raise one's children).
As one author stated: "Although none of these cases directly bears on the issue of the
conflict between divorced parents over the custodian's relocation, both the principles and
the language used are capable of extension to that scenario." Spitzer, supra note 4, at 15.
This argument, however, probably will not prevent custodial removal if removal best serves
the interest of the child. As the Tennessee Court of Appeals noted in Gattas v. Gattas,
No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS, States library, Tenn. App. file), "[T]he
unhappiness of those other than the child . . . cannot influence the court in the face of a
determination of what is in the best interest of the child."
9. See, e.g., Bloss v. Bloss, 147 Ariz. 524, 711 P.2d 663 (Ariz. Ct. App. 1985); In
re Marriage of Rosson, 178 Cal. App. 3d 1094, 224 Cal. Rptr. 250 (1986); Wells v. Wells,
501 So. 2d 700 (Fla. Dist. Ct. App. 1987); Ziegler v. Ziegler, 107 Idaho 527, 691 P.2d 773
(Idaho Ct. App. 1984); In re Marriage of Eckert, 119 Ill. 2d 316, 518 N.E.2d 1041 (1988);
In re Marriage of Frederici, 338 N.W.2d 156 (Iowa 1983); Sandifer v. Sandifer, 509 So.
2d 4 (La. 1987); Vertrees v. Vertrees, 24 Mass. App. Ct. 918, 508 N.E.2d 868 (1987); Knott
v. Knott, 418 N.W.2d 505 (Minn. Ct. App. 1988); Gerber v. Gerber, 225 Neb. 611, 407
N.W.2d 497 (1987); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Alfieri v. Alfieri,
105 N.M. 373, 733 P.2d 4 (Ct. App. 1987); Weiss v. Weiss, 52 N.Y.2d 170, 418 N.E.2d
377, 436 N.Y.S.2d 862 (1981); In re Marriage of Gautier, 58 Or. App. 510, 648 P.2d 1308
(1982); Lindley v. Lindley, 401 N.W.2d 732 (S.D. 1987); Simmons v. Simmons, I Va. App.
358, 339 S.E.2d 198 (1986); Long v. Long, 127 Wis. 2d 521, 381 N.W.2d 350 (1986).
10. See, e.g., FLA. STAT. ANN. § 61.13 (West Supp. 1988); MICH. ComP. LAWS ANN.
§ 722.23 (West Supp. 1988); MINN. STAT. ANN. § 518.17 (West Supp. 1988); N.J. STAT.
ANN. §§ 9:2-2 to - :2-4 (West 1976 & Supp. 1988); Osio REv. CODE ANN. § 3109 (Andersen
Supp. 1986); OR. REV. STAT. 107.137 (1983); Wis. STAT. ANN. § 767.245 (West Supp. 1988).
11. See infra notes 65-127 and accompanying text.
12. Because most Tennessee sources addressing custodial removal are unpublished, the
Memphis State University Law Review
[Vol. 18
various procedural matters associated with removal cases.13 Part III
explores the elements of the best interest standard and provides an
analysis of its operation in Tennessee.14 Part IV outlines the remedies
available to the noncustodial parent if the custodian improperly re-
moves their child from the jurisdiction. 5
II.
PROCEDURAL CONCERNS
A.
Initiation of Suit
A custodial parent contemplating relocation must determine
whether she is restricted from removing the child to another jurisdiction. The presence of a removal restriction generally requires the
custodian to obtain judicial or parental approval before leaving with
the child.' 6 Conversely, when the divorce decree'7 does not contain
Authors have provided detailed descriptions of as many cases as possible. In addition,
references to Tennessee Attorneys' Memo have been included.
13. See infra notes 16-64 and accompanying text.
14. See infra notes 65-127 and accompanying text.
15. See infra notes 128-222 and accompanying text.
16. See W. GARRETT, TENNESSEE DIVORCE, ALmoNY AND CHILD CUSTODY § 24-11
(1984); see, e.g., Schoonover v. Schoonover, No. 613, 13 TAM 7-16 (Tenn. Ct. App. Jan.
14, 1988) (LEXIS, States library, Tenn. App. file); Burgess v. Burgess, No. 86-26-II, 11
TAM 28-15 (Tenn. Ct. App. May 29, 1986) (1986 Westlaw 6059); Neeley v. Neeley, Bedford
Equity, 10 TAM 14-10 (Tenn. Ct. App. May 7, 1985); Walker v. Walker, 656 S.W.2d 11
(Tenn. Ct. App. 1983); Levine v. Levine, 7 TAM 1-8 (Tenn. Ct. App. Nov. 5, 1981).
Restricting the custodial parent from removing her minor child from the jurisdiction
may infringe on the custodian's constitutional right to travel. See generally 2 H. CLARK,
THE LAW OF DoMEsTIC RELATIONS IN THE UNITED STATES § 20.4, at 517 (2d ed. 1987);
Handschu, supra note 4, at 253-56; Pastis, Residence Restrictions on Custodial Parents:
Sex-Based Discrimination?, 16 GOLDEN GATE U.L. REv. 419 (1986); Spitzer, supra note 4,
at 11-14; Note, Restrictions on a Parent'sRight to Travel in Child Custody Cases: Possible
Constitutional Questions, 6 U.C. DAvis L. REv. 181 (1973). Tennessee courts, however,
have rejected the right to travel argument in custodial removal cases. See LeVine, 7 TAM
1-8, slip op. at 7, 8 (holding that the restriction placed on the mother did not violate her
right to travel and indicating that the mother was free to move without the child); see also
Schoonover, No. 613, slip op. (LEXIS) at 3, 13 TAM 7-16 (declaring that "Itihe right of
a citizen to travel . . . is beyond debate" but that "the best interests of the children . ..
[are] dispositive"); Stone v. Stone, No. 152, slip op. at 3, 11 TAM 3-21 (Tenn. Ct. App.
Dec. 6, 1985) (1985 Westlaw 4131) (stating that "jilt is not an unreasonable restraint to
require that a party having custody get the consent of the court prior to moving from the
court's jurisdiction").
Yet, Tennessee courts have held some removal restrictions to be ureasonable on the
grounds that the restriction did not serve the best interest of the children. See, e.g., Laird
v. Laird, No. 86-212-1I, 12 TAM 4-20 (Tenn. Ct. App. Dec. 12, 1986) (1986 Westlaw 14042);
Burgess v. Burgess, No. 86-26-I1, 11 TAM 28-15 (Tenn. Ct. App. May 29, 1986); Lentz
v. Lentz, No. 123, 10 TAM 50-5 (Tenn. Ct. App. Dec. 6, 1985) (1985 Westlaw 4118), affl'd,
1988]
Best Interest on the Move
a residence restriction, or when an injunction prohibiting relocation
has not been issued, the custodian generally may remove her child
without the permission of the trial court or the noncustodial parent. 18
Lack of an express restriction, however, does not always preclude
litigation. Removal suits are initiated in at least two situations when
the mother is seemingly free to relocate.
First, if the custodial parent expects her ex-spouse to oppose
removal or is uncertain about her ability to relocate due to the vague-
ness of the divorce decree, she may petition the court for permission
to relocate. 19 This anticipatory suit will save both time and money
by settling the matter while the custodian and the child are still in
the jurisdictionY' Second, the noncustodial parent may ask the court
to enjoin the custodian from removing the child to another jurisdiction. 21 This latter request may be coupled with a suit to modify
717 S.W.2d 876 (Tenn. 1986). In Burgess, the mother, who had sole custody of the parties'
two children, contended that the trial court erred in signing a final order specifying "that
neither party could remove the children from the jurisdiction of the court without prior
approval." Burgess, No. 86-26-II, slip op. at 5, 11 TAM 28-15. Because the record contained
no evidence that the best interest of the children would be served by enjoining the parties
from moving to another jurisdiction, the appellate court remanded the case and ordered
the trial court to delete the removal restriction. Id. at 5-6.
In Lentz v. Lentz the trial court granted custody of the parties' two older children to
the father, but directed him to remain in the East Tennessee area. Lentz, No. 123, slip op.
at 1, 10 TAM 50-5. The father argued that the residence restriction was unreasonable because
it inhibited his ability to earn a living as a boilermaker. Id. at 3. The record indicated that
the father had worked outside Tennessee in the past, but never for a period longer than
six weeks. Id. There was evidence that if the father had to travel outside the state the
children would remain in Tennessee under the care of their paternal grandmother. Id. For
these reasons, the appellate court held that the trial court erred when it imposed the residence
restriction. Id.
17. For purposes of this Article, "divorce decree" and "child custody decree" are
used interchangeably.
18. Interview with Judge William C. Koch, Jr., Tennessee Court of Appeals, in Nashville, Tenn. (Feb. 18, 1988) [hereinafter Koch]; see also W. GsiuTr, supra note 16, § 2411.
19. Koch, supra note 18. The custodial parent's petition in Neeley, Bedford Equity,
10 TAM 14-10, was "anticipatory."
20. Koch, supra note 18.
Tennessee Code Annotated section 36-6-101 states that the trial court shall retain exclusive
jurisdiction to modify the custody provisions of a divorce, alimony, or separate maintenance
decree. TENN. CODE ANN. § 36-6-101 (Supp. 1988). The jurisdiction of Tennessee courts
lapses, however, when Tennessee is no longer the "home state" of the child. Id. § 36-6203; Boyd v. Boyd, 653 S.W.2d 732, 735 n.3 (Tenn. Ct. App. 1983) (defining "home state").
In Boyd the appellate court held that the Tennessee trial court lacked jurisdiction to modify
the child custody provisions of a Tennessee divorce decree after the mother and child had
resided in New York for several years. Id. at 736. For further rules concerning the jurisdiction
of trial courts, see generally W. GARRrr, supra note 16, § 26-2.
21. See, e.g., Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS,
Memphis State University Law Review
[Vol. 18
visitation22 or to change custody. 23
Although Tennessee courts will readily modify visitation schedules, normally granting the noncustodial parent longer visits on fewer
2
occasions,2 they often are hesitant to transfer custody of the child. 1
Thus, courts require noncustodial parents who request a change of
custody to meet a two-tiered burden of proof.26 Initially, the non-
custodian must establish that a sufficient change in circumstances
States library, Tenn. App. file) (father filed petition to enjoin mother from removing the
parties' daughter to another jurisdiction).
In Tennessee, principles of equity dictate against granting injunctions except in extraordinary circumstances. The remedy of injunction is not granted as a matter of right, but is
within the sound discretion of the chancellor. Hall v. Ballance, 497 S.W.2d 409 (Tenn.
1973). Consequently, an injunction will issue only when restricting the custodian's residence
will further the best interest of the child. See Laird v. Laird, No. 86-212-11, 12 TAM 420 (Tenn. Ct. App. Dec. 12, 1986) (1986 Westlaw 14042) (dismissing an injunction prohibiting
custodial removal of the children from Nashville without prior approval because there was
no proof that the injunction furthered the children's best interest).
22. See, e.g., Smith v. Capps, Weakly Equity No. 3, 12 TAM 24-9 (Tenn. Ct. App.
Apr. 28, 1987) (1987 Westlaw 10088); Powers v. Powers, No. CA 536, 8 TAM 10-20 (Tenn.
Ct. App. Feb. 4, 1983).
23. Dodd v. Dodd, 737 S.W.2d 286 (Tenn. Ct. App. 1987); Arnold v. Gouvisto, 735
S.W.2d 458 (Tenn. Ct. App. 1987); Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5,
1989) (LEXIS, States library, Tenn App. file); see also Smith v. Capps, Weakly Equity No.
3, slip op. at 2, 12 TAM 24-9 (Tenn. Ct. App. Apr. 28, 1987) (1987 Westlaw 10088) (awarding
temporary custody to the father in order to determine whether the mother's move to California "would work out").
24. Garrett, Comment: Smith v. Capps, 1 TENN. F s. L. LETTER, July 1987, at 916. In Powers v. Powers, No. CA 536, 8 TAM 10-20 (Tenn. Ct. App. Feb. 4, 1983), for
example, the original decree allowed the father to visit his two sons on alternate weekends
and for one month each summer. When the mother moved from Tennessee to South Carolina,
distance rendered weekend visitation impossible. In light of the new situation, the father's
visitation schedule was altered to replace weekend visits with the extended visits during
holidays and the summer.
Barbara Handschu, a domestic relations attorney in Buffalo, New York, suggests that
custodial parents who desire to remove a child to another jurisdiction should "propose new,
increased visitation periods and be willing to bear all or some of the increased costs associated
with transporting the child." Handschu, supra note 4, at 264.
25. See Dodd v. Dodd, 737 S.W.2d 286 (Tenn. Ct. App. 1987) (holding that removal
of the children constituted changed circumstances sufficient to support modification of visitation but inadequate to prompt a change in custody); W. GARREr, supra note 16, § 266 (indicating that visitation may be modified for the convenience of the parent, but that
custody may be changed only if the child's best interest is not being served by the existing
placement).
26. Koch, supra note 18; see W. GARRr, supra note 16, § 26-4. This two-tiered
burden of proof is limited to transfer of custody cases. When the noncustodial parent merely
challenges removal, a different burden of proof applies. The principal difference between
these two burdens is that a noncustodial parent does not have to prove changed circumstances
in order to prevent removal, but must prove changed circumstances to modify custody. For
a case in which both removal and custody were challenged, see infra notes 46-59 and accompanying text.
1988]
Best Interest on the Move
has occurred .27 A "sufficient" change involves an event that was
not contemplated during the divorce proceedings, 21 relates to the
custodial parent, 29 and directly affects the welfare of the child.3 0
27. W. GARRETT, supra note 16, § 26-4; see Campbell v. Campbell, No. 82-346-II,
8 TAM 23-11 (Tenn. Ct. App. Apr. 29, 1983) (holding that a change of custody requires
a change of circumstances); see also Tortorich v. Erickson, No. 87-204-11, slip op. at 4,
13 TAM 14-11 (Tenn. Ct. App. Feb. 26, 1988) (1988 Westlaw 15702) (Koch, J., concurring)(stating that "[tihere are no hard and fast rules governing what constitutes a change
in circumstances sufficient to trigger the re-examination of an otherwise final custody decision").
Although a child custody decree is res judicata as to matters addressed prior to divorce,
see Walker v. Walker, 656 S.W.2d 11 (Tenn. Ct. App. 1983); Hicks v. Hicks, 26 Tenn.
App. 641, 176 S.W.2d 371 (1943); cf. W. GARRETr, supra note 16, § 26-4 (suggesting that
the child's welfare outweighs the principle of res judicata), it is not final with respect to
facts and conditions not anticipated by the parties or the trial court. Smith v. Haase, 521
S.W.2d 49, 50 (Tenn. 1975); see TENN. CODE ANN. § 36-6-101(a) (Supp. 1988).
28. See Walker, 656 S.W.2d at 16-17; see also Haggerty v. Haggerty, No. CA 2, 5
TAM 1-12 (Tenn. Ct. App. Dec. 5, 1979) (awarding custody to the father was improper
when the situation serving as the basis for changing custody existed, or should have been
anticipated, at the time of the original custody decree).
In Long v. Long, 488 S.W.2d 729 (Tenn. Ct. App. 1972), the father requested a change
of custody and alleged changed circumstances. These "changed circumstances" involved the
mother's misconduct prior to the divorce hearing. The court denied his request, stating:
"Since the [father] had knowledge of all of the material facts . . . prior to the entry of
the divorce decree, but remained silent . .. he cannot now contend that this constitutes a
change in circumstances .... " Id. at 732; see also Smith v. Smith, 7 TAM 11-25 (Tenn.
Ct. App. Feb. 5, 1982) (upholding the trial court's refusal to admit evidence of the mother's
misconduct that occurred prior to the original custody order).
29. Koch, supra note 18; see Hunter v. Hunter, No. 82-293-I, 8 TAM 12-23 (Tenn.
Ct. App. Feb. 24, 1983) (holding that the trial judge properly denied the father's petition
for sole custody when the only evidence of a change in circumstances was the father's
remarriage); Houghland v. Houghland, No. 81-134-Il, 6 TAM 6-12 (Tenn. Ct. App. Dec.
19, 1980) (declaring that, absent a need for removing the child from the mother's custody,
the father's remarriage did not constitute changed circumstances sufficient to justify a transfer of custody). But see Jones v. Jones, No. CA 714, 4 TAM 24-5 (Tenn. Ct. App. May
25, 1979) (holding that (1) changed circumstances in both parents' homes should be considered and (2) the trial judge erred in denying that a change of circumstances had occurred
based solely on a lack of change in the custodian's home).
It may be very difficult for the noncustodial parent to prove a sufficient change concerning
the custodial parent. In Tortorich v. Erickson, No. 87-204-I, slip op. at 5-6, 13 TAM 1411 (Tenn. Ct. App. Feb. 26, 1988) (1988 Westlaw 15702), the court allowed the father to
retain custody even though he had been threatened with prosecution for passing bad checks,
was unable to hold a steady job, had relied on his new wife and his mother for support,
and had misled the court and opposing counsel during the custody proceedings.
30. See Arnold v. Gouvitsa, 735 S.W.2d 458, 463 (Tenn. Ct. App. 1987) (refusing
to transfer custody to the father because no "proof was presented to show any changed
circumstances that would materially affect the welfare of the [child]"); Walker v. Walker,
656 S.W.2d 11, 16 (Tenn. Ct. App. 1983); see also Allen v. Allen, No. CA 665, 3 TAM
39-3 (Tenn. Ct. App. Aug. 25, 1978) (declining to disturb a placement order when the
noncustodial parent failed to show changed circumstances that would support a conclusion
that the child's welfare would be better served by a transfer of custody).
Memphis State University Law Review
[Vol. 18
Removal of the child from the jurisdiction arguably constitutes
changed circumstances sufficient to support a transfer of custody.-3'
For purposes of this Article, removal always concerns the custodial
parent and definitely affects the welfare of the child. The dispositive
factor, therefore, is whether the noncustodial parent had prior knowledge of the custodian's desire to move. If the noncustodial parent
knew prior to the entry of the divorce decree that his ex-wife intended
32
to relocate, removal may not constitute changed circumstances. If
he lacked prior knowledge of the proposed move, removal may con-
stitute changed circumstances."
Merely showing sufficient changed circumstances will not prompt
a court to transfer custody to the noncustodial parent.3 4 It will,
however, override the res judicata effect of the original divorce decree
and trigger the second-tier burden.35 Under the second burden, the
noncustodial parent must prove, by a preponderance of the evidence,
6
that the change in custody will promote the best interest of the child.
31. See W. GeaRr, supra note 16, § 26-5 (listing removal of the child from the
state as a basis for modification of child custody decrees in Tennessee); cf. infra notes 3233.
32. See Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS, States
library, Tenn. App. file) (holding that a move by the custodial parent was contemplated
at the time of the divorce decree and res judicata effect thus not overcome); Walker v.
Walker, 656 S.W.2d 11, 17 (Tenn. Ct. App. 1983) (holding that custodial removal of children
from Tennessee did not constitute changed circumstances when the father knew, at the time
of the divorce hearing, of the mother's desire to move).
33. Smith v. Capps, Weakly Equity No. 3, 12 TAM 24-9 (Tenn. Ct. App. Apr. 28,
1987) (1987 Westlaw 10088); see also Pettit v. Pettit, No. 84-356-I1, 10 TAM 26-14 (Tenn.
Ct. App. May 30, 1985) (holding that the mother's act of moving the child 200 miles from
Nashville was a sufficient change in circumstance to justify modifying the visitation provision
of the divorce decree).
The "no prior knowledge" requirement may penalize noncustodial parents who were
careful to include a removal restriction in the divorce decree or to obtain an order enjoining
the mother from removing the children without permission. If the noncustodial parent subsequently requests a change in custody due to the mother's desire to relocate, his earlier
efforts to maintain a relationship with his children may be used against him. See infra notes
54, 59.
34. See Arnold v. Gouvitsa, 735 S.W.2d 458, 463 (Tenn. Ct. App. 1987) (holding
that removal of the children from the jurisdiction, in and of itself, does not warrant a
change in custody, but that court must examine best interest of children); see also Payne
v. Payne, No. CA 322, 2 TAM 49-20 (Tenn. Ct. App. Nov. 8, 1977) (commenting that
the chancellor must consider the possibility of changed circumstances in light of the best
interest of the child).
35. See Jones v. Jones, No. CA 714, 4 TAM 24-5 (Tenn. Ct. App. Apr. 25, 1979);
see also Walker v. Walker, 656 S.W.2d 11, 16 (Tenn. Ct. App. 1983).
36. Arnold, 735 S.W.2d at 463; Koch, supra note 18; see infra Part III (discussing
the best interest standard).
19881
Best Interest on the Move
If the noncustodial parent satisfies both burdens, only then may the
trial court award him custody of the child.
B.
Burdens of Proof
1. General Principles
Prior to issuing a removal order, the trial court must conduct
a best interest analysis and, therefore, will expect both parents to
present facts supporting their respective best interest arguments.3 7 In
Seessel v. Seessel,38 decided on March 14, 1988, the Tennessee Supreme Court held that the custodial parent always bears the burden
of proving that removal will serve the best interest of the child. 9
Prior to this time, state courts followed the burden of proof standards enunciated in Walker v. Walker."" Walker held that the presence or absence of a removal restriction4 ' dictated which party would
bear the burden of proof. If the divorce decree restricted removal,
the custodial parent had to demonstrate that the proposed move
37. Koch, supra note 18. This expectation derives from the rule that "whatever is
done must be in the best interest of the child." See Neeley v. Neeley, Bedford Equity, slip
op. at 6, 10 TAM 14-10 (Tenn. Ct. App. Mar. 7, 1985).
In Neeley the mother was granted sole custody of the parties' minor child and, in return,
agreed to a court order requiring her to maintain the child's residence in Bedford County,
Tennessee. Six months after issuance of the final decree, the mother petitioned the trial
court for permission to move the child to Davidson County, where she was planning to
enter the police academy in Nashville. Slip op. at 2. The trial court granted her petition
to remove over the father's objection. On appeal, the father argued that the mother "failed
to sustain the burden of showing that her proposed move from Bedford County to Davidson
County was in the child's best interest." Id. at 5. The appellate court disagreed, asserting
that the mother met her burden by describing the improved financial condition that would
result from the new job and the day care facilities that would be available in Davidson
County. The court also noted that the disadvantages cited by the father related to his personal
inconvenience, not to the best interest of the child. Id. at 6. This case illustrates that each
party is expected to present evidence concerning the impact the move will have on the child.
38. 748 S.W.2d 422 (renn. 1988).
39. The Tennessee Supreme Court actually adopted the burden of proof enunciated
in Frey v. Meade, 7 TAM 39-12 (Tenn. Ct. App. Aug. 20, 1982) (stating that "it is against
the policy of the law to permit the removal of a minor child from the State unless the
applicant [custodial parent] shows that the best interests of the child will be better served
by its removal"). But see Seessel v. Seessel, No. 51 (Tenn. Apr. 25, 1988) (unpublished
order on petition to rehear) (asserting that the only portion of Frey relied upon was that
portion citing Am. Jut. 2D).
40. 656 S.W.2d 11, 17-18 (Tenn. Ct. App. 1983).
41. "Removal restriction" may also include an injunction.
Memphis State University Law Review
[Vol. 18
would promote the child's best interest.4 2 If no restriction existed,
then the noncustodial parent had to prove that removal was detrimental to the best interest of the child.4 3 Seessel overruled the second prong of Walker and insisted that the noncustodial parent should
not bear the burden of proof."
The Seessel standard is both logical and correct. First, the custodial parent is in the best position to gather evidence concerning
the effects of removal. She is the party who would have thoroughly
investigated conditions existing in the new community and who can
most effectively describe those conditions to the court. Second, "status
quo" in the removal context necessarily refers to residential stability.
Thus, the parent seeking to remove the child from familiar surroundings should bear the burden of proving best interest. Finally,
the Walker standard frequently permitted neutral moves-moves that
neither advanced nor prejudiced the child's welfare. Neutral moves
violate the very essence of the best interest standard because they
are based on the desires of the custodian rather than the welfare of
the child. The new Seessel standard, however, emphasizes that the
best interest of the child is paramount and should discourage ju4
dicially-sanctioned neutral moves. 1
2.
Two Burdens: Distinguishing Custody and Removal
A complicated situation arises when the noncustodial parent objects to the custodian's removal request and petitions for a change
42. Walker, 656 S.W.2d at 17; see also Burgess v. Burgess, No. 86-26-1, slip op. at
5, 11 TAM 28-15 (Tenn. Ct. App. May 29, 1986) (1986 Westlaw 6059) (stating that in light
of the removal restriction, "the burden of showing that the move is in the best interest of
the children is on the custodial parent seeking relocation").
43. Walker, 656 S.W.2d at 17-18; see also Dodd v. Dodd, 737 S.W.2d 286, 292 (Tenn.
Ct. App. 1987) (allowing removal because the noncustodial parent failed to offer proof that
relocation would not be in the best interest of the children); Arnold v. Gouvitsa, 735 S.W.2d
458, 463 (Tenn. Ct. App. 1987) (holding that when no restriction has been issued the parent
contesting relocation must prove that removal is not in the best interest of the child).
44. Seessel, 748 S.W.2d at 423-24 (holding that the "Court of Appeals erred in its
ruling that a non-custodial parent contesting the change of domicile of a child . . . must
carry the burden of proving that the relocation is not in the child's best interests").
45. Seessel does not affect all removal cases. For example, it should not alter the
custodian's initial determination of whether she can remove her child from the jurisdiction
at will. Also, Seessel does not suggest that the custodial parent who moves without seeking
judicial approval will be held in contempt if no removal restriction exists. Garrett, Comment:
Seessel v. Seessel, 2 TENN. FAm. L. LETTER 6-1, Apr. 1988, at 2. Finally, Seessel should
not affect any case in which the mother has been restricted to the original jurisdiction,
because that portion of Walker was correct. See supra text accompanying note 44.
19881
Best Interest on the Move
of custody.46 In Walker v. Walker,47 for example, the trial court
awarded sole custody of the parties' three minor children to the
mother, but enjoined her from removing the children to another
jurisdiction. 4" When she decided to move to Toronto, the mother
petitioned the court for permission to remove the children. The father
contested the mother's petition and sought sole custody of the children.4 9 The court held that the mother had the burden of proving
50
that the move to Toronto was in the best interest of the children,
whereas, the father bore the burden of proving that a change in
custody was warranted.5 1
Addressing the custody issue, the court stressed that the original
divorce decree was res judicata in subsequent modification suits unless a material change in circumstances had occurred. 2 The father's
sole contention was that the mother's proposed move constituted
changed circumstances justifying a transfer of custody.53 The court
declared that the father could not overcome the res judicata effects
of the original decree because he had prior knowledge of the mother's
desire to move to Canada 4 and denied his petition for a change in
custody.55
The mother, as the party requesting removal, had to prove that
the benefits which would inure to the children in Toronto outweighed
the advantages of remaining in Memphis. 6 She met this burden by
showing, inter alia, that the cultural and educational opportunities
in Toronto were at least equal to those available in Memphis and
that a stronger family support system existed in Toronto.5 7 Thus,
46. The holding in Walker still stands because the mother had been enjoined from
removing the children to another jurisdiction. Thus, the court properly held that Mrs. Walker
bore the burden of proving best interest.
47. 656 S.W.2d 11 (Tenn. Ct. App. 1983).
48. Id. at 13. The father was awarded visitation rights. Id.
49. Id. at 16.
50. Id. at 18; see supra text accompanying note 42; infra note 56.
51. See Walker, 656 S.W.2d. at 16-17.
52. Id. at 16; see also supra notes 31-33 and accompanying text.
53. Walker, 656 S.W.2d at 17.
54. Id. This knowledge was evident from the father's testimony at the divorce hearing
and from his request for an injunction prohibiting the mother from removing the children
from Tennessee. Id. at 16-17; see supra notes 32-33 and accompanying text.
55. Walker, 656 S.W.2d at 17.
56. Id. at 18. Under the recent Seessel decision, Mrs. Walker would still bear the
burden of proving best interest. The rationale would, however, be different. Walker emphasizes the presence or absence of a removal restriction. Seessel always places the burden
on the custodian. Seessel, 748 S.W.2d at 423.
57. Walker, 656 S.W.2d at 18. As early as the divorce hearing the mother "had been
checking out housing, and . . . the fine points of one school versus another." Id. at 16.
Memphis State University Law Review
[Vol. 18
the mother was permitted to remove the children to Toronto." On
appeal, both the denial of the change in custody and the grant of
permission to remove were affirmed. 59
C.
Standard of Review on Appeal
Because removal and custody cases involve factual determinations, the standard of review on appeal is governed by Tennessee
Rule of Appellate Procedure 13(d).60 Rule 13(d) provides that child
custody disputes must be reviewed de novo upon the record, giving
a presumption of correctness to the trial court's factual findings. 6
Absent error of law, the appellate court must affirm the trial court's
order unless the evidence preponderates otherwise. 62 If the appellate
58. Id. at 18.
59. See id. at 16, 18.
60. TENN. R. App. P. 13(d) (as amended July 1, 1980). The text of this rule reads:
Unless otherwise required by statute, review of findings of fact by the trial
court in civil actions shall be de novo upon the record of the trial court,
accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise. Findings of fact by a jury in civil
actions shall be set aside only if there is no material evidence to support the
verdict.
Id.
Not all states have adopted Tennessee's broad de novo standard of review. In at least
30 states, including Alabama, Florida, Georgia, Indiana, Kentucky, Missouri, North Carolina, and Texas, appellate courts will affirm the trial court's decision unless that decision
is a "clear abuse of discretion" or is "against the manifest weight of the evidence." Atkinson,
Criteria for Deciding Child Custody in the Trial and Appellate Courts, 18 FAMs.L.Q. 1,
40 & n. 178 (1984). Only six other states apply a standard of review similar to that of
Tennessee. Id. at 41 & n.180 (listing Arkansas, Iowa, Michigan, Nebraska, Oregon, and
Pennsylvania as states employing a de novo standard). Jeff Atkinson, a former Chairperson
of the ABA's Child Custody Committee, commented that
[t]he de novo standard of review is preferable to the "abuse" standard. On
a subject as fundamentally important as the custody and welfare of children,
each case on appeal should receive close scrutiny. A careful review is especially
important since a custody determination may be influenced by the biases of
the trial judge.
Id. at 41.
61. See Hass v. Knighton, 676 S.W.2d 554, 555 (Tenn. 1984); Vann v. Vann, No.
CA 108, 9 TAM 39-24 (Tenn. Ct. App. Aug. 3, 1984) (LEXIS, States library, Tenn. App.
file); Bah v. Bah, 668 S.W.2d 663, 665 (Tenn. Ct. App. 1983).
Under prior Tennessee law, the presumption of correctness did not apply in child custody
cases. Thus, the review was strictly de novo. Riddick v. Riddick, 497 S.W.2d 740, 742 (Tenn.
Ct. App. 1973). Cases such as Riddick, however, were decided before the enactment of the
Tennessee Rules of Appellate Procedure, "and no exception from the normal review in nonjury matters is made therein for custody cases." Bah, 668 S.W.2d at 665; see also Hass,
676 S.W.2d at 555.
62. TENN. R. App. P. 13(d); see also Gattas v. Gattas, No. 85-66 (Tenn. Ct. App.
Best Interest on the Move
1988]
court determines that inadequate evidence exists to support a particular finding of fact, it may remand the case to the trial court or
retain the case to ascertain facts. 63 All actions taken by the appellate
court, however, should be designed to promote the best interest of
the child. 64
III.
THE
BEST INTEREST ANALYSIS
"Tihe determination of what future course will be in the best
interest of a child is probably the most difficult decision that
any court has to make.,, 5
In the past, courts and legislatures have relied on various preferences and presumptions when determining which parent should
be awarded custody of the child. Early common law presumed children were the property of their father,6 whereas later decisions,
relying on the doctrine of tender years, preferred the mother as
custodian. 67 Today, most courts base their decisions on the best interest
Dec. 5, 1985) (LEXIS, States library, Tenn. App. file) (asserting that the findings of the
trial court would be given great weight by the appellate court because the trial court observed
the manner and demeanor of the witnesses); W. GARRErr, supra note 16, § 26-13 (stating
that "Itihere is no presumption of correctness of the [trial court's] decision; there is a
presumption that the fact findings are correct" (footnote omitted)). The trial judge is vested
with wide discretion in cases concerning child custody and support and maintains control
over such matters beyond issuance of the final decree. TENN. CODE ANN. § 36-5-101(e)
(Supp. 1988); see also Rogero v. Pitt, 759 S.W.2d 109, 111-12 (Tenn. 1988).
63. TENN. CODE ANN. § 27-3-126 (1980) (providing that "[in equity cases, the [appellate] court may retain the cause to take accounts or ascertain facts, or remand, at its
discretion").
64. Hass v. Hass, No. 83-128-I, 9 TAM 13-5 (Tenn. Ct. App. Feb. 3, 1984) (asserting
that regardless of the standard of review, the child's best interest is paramount); Williams
v. Williams, Shelby Law No. 61, 6 TAM 8-12 (Tenn. Ct. App. Jan. 19, 1981) (insisting
that the duty of the appellate court is not simply to weigh the evidence and decide whether
it preponderated against the chancellor's findings, but to review the evidence and make its
own determination of what action is best for the child).
65. Seessel v. Seessel, No. 51, slip op. at 4, 12 TAM 48-22 (Tenn. Ct. App. Oct. 27,
1987) (1987 Westlaw 18909), rev'd, 748 S.W.2d 422 (Tenn. 1988).
66. See State ex rel. Paine v. Paine, 23 Tenn. (4 Hum.) 523, 526 (1843) (stating that,
at common law, the wife had no right to custody of the children as against the husband);
see also Smith v. Smith, 188 Tenn. 430, 435, 220 S.W.2d 627, 629 (1949) (indicating that
at common law the father had exclusive and legal right to the custody and services of his
minor children); Stubblefield v. State ex rel. Fjelstad, 171 Tenn. 580, 586, 106 S.W.2d 558,
560 (1937). But see Kenner v. Kenner, 139 Tenn. 700, 702, 201 S.W. 779 (1918) (declaring
that a father has no property interest in his children). See generally W. GARRETT, supra
note 16, § 24-5.
67. See, e.g., Bevins v. Bevins, 53 Tenn. App. 403, 422, 383 S.W.2d 780, 788 (1964)
(stressing that a mother, except in extraordinary situations, should be awarded custody of
Memphis State University Law Review
[Vol. 18
of the child.6 Tennessee courts are bound by the legislature's mandate that custody decisions be made "as the welfare and interest of
the child or children may demand.' 69 The statute, however, provides
no further guidance, and Tennessee courts interpreting the provision
have based best interest decisions on numerous-and sometimes contradictory-factors. 70 As the Tennessee Supreme Court stated, "[T]he
determining facts in... custody cases are so infinite in their variety
that the reported decision in one case is of little aid or assistance
in settling the next."'"
her young children); see also W. GARETr, supra note 16, § 24-6 (stating that "[tihere is
a strong presumption that the needs of very young children are best served by the mother").
But cf. Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. Ct. App. 1983) (explaining that the tender
years doctrine is but one factor to be considered in the overall determination of best interest).
68. See supra notes 9 & 10; see also supra note 11.
69.
TENN. CODE ANN.
§ 36-6-101 (Supp. 1988). Although the statute does not use
the term "best interest," Tennessee courts have unanimously adopted this standard in analyzing child custody disputes. See W. GARRETT, supra note 16, § 24-3 (commenting that
"[i]n all cases, the welfare or best interest of the child is the object to be attained" (footnote
omitted)); see, e.g., Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS,
States library, Tenn. App. file) (stating that "[i]n all matters involving child custody, the
paramount consideration is the child's best interest").
70. See, e.g., infra notes 76-97 and accompanying text.
71. Holloway v. Bradley, 190 Tenn. 565, 571, 230 S.W.2d 1003, 1006 (1950); see also
Smith v. Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 630 (1949) (stating that there are
"literally thousands" of factors to be considered in deciding custody).
As one author noted, the term "best interest" is so vague it is unclear whether best
interest means promoting the child's short term happiness or long-term development into
a well-adjusted adult. Pearson & Ring, JudicialDecision-Makingin Contested Custody Cases,
21 J. F m. L. 703, 719 (1983). The fact that judges disagree on the relative weighting of
individual best interest factors also contributes to the vagueness of the standard. A recent
survey of Colorado judges, for example, indicates that older judges (those over 40 years
old) rely more heavily on the tender years doctrine and the moral characteristics of the
parent than do younger judges. Id. at 718-19. Furthermore, judges frequently fail to use
all of the pertinent best interest factors in their analysis. Instead, they establish a hierarchy
of factors and use only a few from the top of this list when determining which parent
should have custody of the child. Lowrey, Child Custody Decisions in Divorce Proceedings:
A Survey of Judges, 12 PROF. PSYCHOLOGY 492, 494 (1981). Table 1 contains a rank order
of factors that Dr. Lowery included in her study.
TABLE 1
RANK ORDER AND MEAN RATINGS OF BEST INTEREST FACTORS*
1.
2.
3.
4.
5.
6.
7.
Mental stability of each parent
Each parent's sense of responsibility to the child
Biological relationship
Each parent's moral character
Each parent's ability to provide stable community involvement
Each parent's affection for the child
Keeping the child with other siblings
9.96
9.95
9.46
9.37
9.09
.93
1.01
5.05
1.46
1.52
9.01
8.89
2.00
1.52
Best Interest on the Move
1988]
Careful analysis of Tennessee case law, however, suggests that
most best interest factors can be categorized as "economic," "personal," or "environmental. "72 Economic factors relate to the custodial parent's ability to provide for the child financially. 73 Personal
factors concern the interaction between the child and various family
members. 74 Finally, environmental factors are those that affect the
child's surroundings, such as housing arrangements and school systems.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
75
Each parent's ability to provide access to schools
8.13
2.00
Keeping young child with mother
8.13
2.40
Physical health of each parent
7.95
1.72
Wishes of the parents
7.61
2.36
Professional advice
7.56
2.23
Biological relationship (one parent is an adoptive parent)
7.00
2.80
Finances
6.97
2.19
Child's wishes
6.94
2.02
Length of time each parent has had custody
6.89
2.03
Each parent's ability to provide contact with the child's
6.84
2.07
other relatives
18.
Each parent's ability to provide access to children of the
6.70
2.08
same age
19.
Each parent's ability or intention to provide a two-parent
5.21
2.55
home
20.
Placing child with parent of same sex
3.97
2.22
SOURCE: Lowery, supra, at 494.
*Items were rated on their importance in determing custody on an I1-point scale (1 = little
importance to 11 = high importance). The critical difference between means is .93. "M" is
mean, and "SD" is standard deviation.
72. See infra notes 76-97 and accompanying text. One court recently described best
interest as follows:
[Best interest] requires consideration of many relevant factors, included [sic]
but not limited to the age, habits, mental and emotional make-up of the child
and those parties competing for custody; the education and experience of those
seeking to raise the child; their character and propensities as evidence[d] by
their past conduct; the financial and physical circumstances available in the
home of each party seeking custody and the special requirements of the child;
the availability and extent of third-party support; the association and influences
to which the child is most likely to be exposed in the alternatives afforded,
both positive and negative; and where is the greater likelihood of an environment for the child of love, warmth, stability, support, consistency, care
and concern, and physical and spiritual nurture.
Hall v. Hall, No. 87-147-Il (Tenn. Ct. App. Sept. 30, 1987) (LEXIS, States library, Tenn.
App. file) (emphasis added).
73. See infra notes 76-80 and accompanying text.
74. See infra notes 81-91 and accompanying text. The term "family members" is used
broadly. It refers to parents, siblings, stepparents, stepbrothers, stepsisters, and extended
family members on both the maternal and paternal sides.
75. See infra notes 92-97 and accompanying text.
Memphis State University Law Review
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The purpose of the following sections is to evaluate Tennessee
courts' use of the best interest standard in the removal context.
Section A describes factors used to determine best interest. By concentrating on a recent removal case, Section B illustrates the interaction of these best interest factors. Finally, Section C proposes a
superior methodology for handling the best interest analysis in future
removal cases.
A.
Description of Factors
1. Economic Factors
When a custodial parent petitions to remove a child from the
jurisdiction, courts may scrutinize that parent's ability to provide
for the child financially. 76 If the custodian has been unable to secure
adequate employment in the original jurisdiction, courts are inclined
to permit removal when she wishes to accept a promising job offer
in another locale.7 Courts are especially receptive to the custodian's
employment-related removal requests when the noncustodial parent
cannot afford sufficient child support payments. 78 However, if the
custodial parent desires to move but has no firm job offer, courts
79
are reluctant to permit removal.
76. Vann v. Vann, No. CA 108, 9 TAM 39-24 (Tenn. Ct. App. Aug. 3, 1984) (LEXIS,
States library, Tenn. App. file) (noting that the custodian would earn a higher hourly wage
if allowed to accept a job in Texas); Koch, supra note 18 (explaining that the parent's
ability to provide for the child is often the initial consideration in a best interest analysis).
But cf. Smith v. Smith, 188 Tenn. 430, 437, 220 S.W.2d 627, 629 (1949) (stating that mere
financial advantage is not the only consideration in deciding custody cases).
77. See, e.g., Neeley v. Neeley, Bedford Equity, slip op. at 3, 6, 10 TAM 14-10 (Tenn.
Ct. App. Mar. 7, 1985). The custodial mother was unable to secure suitable employment
in the original jurisdiction, Bedford County. She desired to move because she planned to
attend the Police Academy of the Metropolitan Government for Nashville and Davidson
County. Her starting salary as a Metropolitan police officer would be significantly higher
than the salary provided by her current employer, a fast food restaurant. The court further
noted that the Police Department provided insurance benefits and day care for its employees.
Id. at 2. For a further discussion of Neeley, see supra note 37.
78. Vann v. Vann, No. CA 108, 9 TAM 39-24 (Tenn. Ct. App. Aug. 3, 1984) (LEXIS,
States library, Tenn. App. file). The father, a student at the University of Tennessee, could
pay only ten dollars per week child support. The custodial mother had been guaranteed
employment in Texas that paid six dollars per hour, a higher pay rate than she could earn
in Tennessee. Because the father was unable to provide for the child financially, the custodian's income was "of prime importance." Consequently, the court allowed removal so
the mother could accept the better job. Id.
79. Smith v. Capps, Weakly Equity No. 3, 12 TAM 24-9 (Tenn. Ct. App. Apr. 28,
19881
Best Interest on the Move
The employment opportunities of the custodian's new spouse also
may be considered in the removal decision. When all other factors
are equal, the new spouse's job offer may tip the scales in favor
of removal.80
2.
Personal Factors
The dynamics of personal relationships have great bearing on the
welfare of a child. In the removal context, courts typically compare
the personal factors in the present locale to those in the new community.
If no significant family ties exist in the current residence, courts
are more likely to allow removal, especially if close relatives reside
in the prospective community.8' If the child has lived with the custodial parent for a long time, courts may be more receptive to removal requests, even though the move will separate the child from
other relatives. 82
If the court determines the child is sufficiently mature, his preference concerning residence may be an influential element in the best
interest analysis. 83 Because children may prefer the "fun" parentthe noncustodial parent who is not responsible for the less enjoyable
1987) (1987 Westlaw 10088). The custodian remarried and planned to move to California
with her new spouse. Because she had not secured a job at the time of the move, the court
temporarily transferred custody to the father. After the mother became settled in California,
the court held that she could petition for a determination of permanent custody. Slip op.
at 1, 2.
80. Courts give preference to the new family unit that results from the custodial
parent's remarriage and tend to permit removal so that the new spouse can accept better
employment. See Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS, States
library, Tenn. App. file) (allowing removal because the custodian's new spouse had been
offered a teaching position in Calgary, Canada).
81. Schoonover v. Schoonover, No. 613, 13 TAM 7-16 (Tenn. Ct. App. Jan. 14, 1988)
(LEXIS, States library, Tenn. App. file). The Schoonovers had lived in Tennessee for only
three years and had no real ties to the state. The custodial mother desired to remove the
children to Wisconsin, where all of her relatives resided. Id.
82. Seessel v. Seessel, No. 51, 12 TAM 48-22 (Tenn. Ct. App. Oct. 27, 1987) (1987
Westlaw 18909) (indicating that the mother had been the custodian for over seven years),
rev'd on other grounds, 748 S.W.2d 422 (Tenn. 1988). But cf. Levine v. Levine, 7 TAM
1-8 (Tenn. Ct. App. Nov. 5, 1981) (denying removal in order to preserve the relationships
between the child and other relatives).
83. Schoonover, No. 613, 13 TAM 7-16. Pursuant to the original divorce decree, the
mother was custodian of two of the couple's three children. The third child, a 13-year-old
boy, lived with the father. When the mother requested permission to remove the two other
children, she also petitioned the court for custody of the third child. The trial judge, after
an in-chambers discussion with the 13-year-old child, refused to change custody to the mother
because the child expressed a strong desire to remain with his father.
Memphis State University Law Review
[Vol. 18
tasks of educating and disciplining the child on a day-to-day basisjudges frequently scrutinize the child's reasons for choosing one par-
ent over the other.84
The custodian's mental and physical ability to care for the child
usually are not stressed in the removal context because the custodian
already has demonstrated her fitness in the original custody hearing.
However, these factors may be reconsidered if the noncustodial parent requests a change of custody.8 5
Courts regularly evaluate the moral fitness of the custodial parent.86
If the custodian is promiscuous, has a drug or alcohol dependency,
or acts in a manner unbecoming a proper role model, a court may
prohibit her from removing the child, or, in the alternative, may
order a change of custody. s7
The custodian's religious beliefs are also a factor in the best
interest analysis. 88 However, courts may not prefer one denomination
89
over another in removal cases.
When the custodial parent has remarried, the stepparent's feelings
for the child become relevant to the best interest analysis. 9° Courts
typically expect the stepparent to testify that he loves the child and
has accepted the child as a member of the new family unit. 9'
84. See Satterfield v. Satterfield, No. 1129, slip op. at 2, 13 TAM 10-24 (Tenn. Ct.
App. Feb. 1, 1988) (1988 Westlaw 73317) (discounting the child's preference for the noncustodial father who had "many wonderful pastimes to offer" but was "not . . . a great
friend of discipline").
85. Roberts v. Roberts, No. 83-404-Il, 9 TAM 41-22 (Tenn. Ct. App. Aug. 22, 1984)
(denying the mother's request for a change in custody on the ground that her physical and
mental difficulties would hinder her ability to care for the child).
86. See, e.g., Hall v. Hall, No. 87-147-Il (Tenn. Ct. App. Sept. 30, 1987) (LEXIS,
States library, Tenn. App. file) (upholding the trial court's transfer of custody to the father
because the mother lied under oath).
87. Barnhart v. Barnhart, No. CA 294, 2 TAM 9-6 (Tenn. Ct. App. Feb. 1, 1977)
(affirming the trial court's transfer of custody to the father because the mother had sex
with other men in the child's presence).
88. Mollish v. Mollish, 494 S.W.2d 145, 152 (Tenn. Ct. App. 1973) (stating that a
parent may be denied custody when his or her religious beliefs conflict with the fundamental
laws of the nation).
89. U.S. CONST. amends. I & XIV, § 1; see 2 H. CLARK, supra note 16, § 20.4(0.
90. See, e.g., Seymour v. Seymour, Shelby Equity No. 37, No. D11852-2 (Tenn. Ct.
App. Oct. 1, 1987) (LEXIS, States library, Tenn. App. file) (relying on the stepfather's
affection for the child to find that removal would further the child's best interest).
91. Id; see also Barganier v. Barganier, Tipton Equity No. 2 (Tenn. Ct. App. Nov.
5, 1985) (LEXIS, States library, Tenn. App. file). At least one court has held that the
stepparent has a duty to testify "as to his occupation, finances, and other relevant facts"
when best interest is at issue. Riddick v. Riddick, 497 S.W. 740, 742 (Tenn. Ct. App. 1973).
19881
Best Interest on the Move
3.
Environmental Factors
Tennessee courts generally require the custodian to demonstrate
that comparable educational, recreational, and cultural opportunities
exist in the new jurisdiction. 92 Judges are inclined to allow removal
when better opportunities are available in the new location.
Because housing arrangements are an important element of the
child's environment, the custodian may be required to secure suitable
housing prior to the move.9 The quality of housing also may factor
into the best interest analysis. For example, courts may inquire whether
the home is large enough to accommodate the family and whether
the child will have his own room. 94
Courts may analyze the impact removal will have on the child's
care and supervision. For example, if the move is away from family
members who have supervised the child, the court may inquire whether
suitable arrangements have been made for child care in the new
location. 95
Because removal from familiar surroundings may have a tremendous impact on the child, courts frequently recognize the importance of residential stability.Y The weight given to residential
stability in a best interest analysis may vary depending on the age
97
of the child and the length of time the child has resided in the area.
92. See, e.g., Rogero v. Pitt, 759 S.W.2d 109, 110 (Tenn. 1988) (comparing environmental factors in Dayton, Ohio to those in Knoxville). But cf. Truett v. Truett, Obion
Equity No. I, 7 TAM 24-9 (Tenn. Ct. App. Apr. 5, 1982) (holding that a change in custody
for the sole purpose of allowing the child to attend a better school was improper).
93. Smith v. Capps, Weakly Equity No. 3, 12 TAM 24-9 (Tenn. Ct. App. Apr. 28,
1987) (1987 Westlaw 10088) (awarding temporary custody to the father because the mother
had not obtained housing in California). But cf. Neeley v. Neeley, Bedford Equity, 10 TAM
14-10 (Tenn. Ct. App. Mar. 7, 1985) (stating that the custodian is not required to make
housing arrangements until the court grants permission to move).
94. See, e.g., Rogero, 759 S.W.2d at 110 (noting that the mother's fiance had a
"spacious" house); Parrott v. Parrott, McNairy General Sessions No. 1, 10 TAM 33-34
(Tenn. Ct. App. July 16, 1985) (transferring custody to the mother because the father lived
in an overcrowded, four-room house that lacked indoor plumbing); Johnson v. Long, No.
CA 73, 10 TAM 25-12 (Tenn. Ct. App. May 17, 1985) (changing custody to a grandparent
because the custodian's mobile home was unkempt and too small). See generally W.
GAutarr, supra note 16, § 24-12.
95. Hayes v. Hayes, No. 54, 12 TAM 23-16 (Tenn. Ct. App. Apr. 24, 1987) (LEXIS,
States library, Tenn. App. file) (noting that the maternal grandmother had supervised the
child after school and that the custodian had made suitable day-care arrangements in the
new community).
96. Residential stability refers to geographic consistency. See, e.g., LeVine v. Levine,
7 TAM 1-8 (Tenn. Ct. App. Nov. 5, 1981) (denying removal to ensure that the child would
have a "stable place of abode").
97. Koch, supra note 18 (explaining that courts are more reluctant to allow an older
Memphis State University Law Review
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Application of Best Interest Factors
In Gattas v. Gattas98 the father sought to enjoin the custodial
mother from removing their seven-year-old daughter from Memphis.
The mother had remarried and desired to settle in Calgary, Canada,
where her new spouse had received an attractive job offer. 99 The
father, however, opposed removal, arguing that the personal and
environmental best interest factors in Memphis outweighed those in
Calgary.
With regard to personal factors, the father indicated that he enjoyed a very close relationship with his daughter. Although the divorce decree awarded him weekend visitation, he usually saw the
child three times each week. °° The father noted that he paid for his
daughter's tuition, consistently monitored her academic progress, and
attended all school events. He claimed that he was responsible for
the child's religious training and had taken her to church services. 10'
In Memphis, the child had a large support group of aunts, uncles,
grandparents, and cousins. Moreover, the father had remarried and
his new wife was eager to have the child live with them permanently.
If removal were allowed, the father argued, his visitation would be
significantly reduced, as would his ability to monitor the child's
development and the custodial mother's activities.102
The father claimed that the mother was an inappropriate role
model and was remiss in performing her custodial duties. He presented evidence that the mother was an agnostic who refused to give
the child formal religious instruction, and he insisted that the mother's preoccupation with playing bridge resulted in the child being
left without transportation home from school. He also was upset
that the mother exposed the child to R-rated movies that contained
child to be removed because the child likely is entrenched in a close circle of friends and
has significant ties to a particular school and its extracurricular activities).
98. Gattas v. Gattas, No. 85-66 (Tenn. Ct. App. Dec. 5, 1985) (LEXIS, States library,
Tenn. App. file).
99. Id. The new spouse was a medical professor at the University of Tennessee. He
had been offered the position in Calgary before the marriage. The mother's evidence demonstrated that the job in Calgary was a unique opportunity that could not be matched in
Tennessee. Id.
100. Id. The divorce decree awarded the father visitation on alternating weekends and
for 30 days each summer. Id.
101. Id. The father claimed that the custodial mother objected to his taking the child
to church. Id.
102. Id. "The thrust of [the father's] argument is that [the mother] is not unfit to
have custody of [the child] if she stays in Memphis under the observance of [the father]
and the restraints that might entail." Id.
1988]
Best Interest on the Move
nudity and profanity. Finally, the father maintained that the mother
was morally unfit because she had lived with her current husband
out of wedlock for three years.'0
Although the mother did not contest the fact that the child had
a close relationship with her father and paternal relatives, she did
insist that she was a fit parent. She asserted that the father had
misrepresented the extent of his involvement in the child's school
activities, and she testified that she took an active part in her daughter's school-related events. The mother denied that playing bridge
interfered with her responsibilities and claimed that any problems
in picking the child up from school had been corrected by firing an
incompetent housekeeper who was responsible for the child's transportation. The mother, although agnostic, promised to teach the
child the "positive aspects of formal religion" so that the child later
could select her own religious preference.'0 Finally, the mother testified that the child had developed close relationships with the mother's new spouse and his two children and had become part of a
cohesive family unit.
The father contended that environmental factors also dictated
against removal. The child had lived in Memphis all of her life and
had attended the same school for almost four years. Moreover, the
father owned a home in Memphis where the child was welcome to
live.105 The mother countered by arguing that she had visited Calgary
in anticipation of the move and had investigated neighborhoods,
schools, recreational facilities, and cultural opportunities, all of which
"were excellent." °6
The court noted the sharp conflict between the testimony of the
parties' witnesses. Relying heavily on the findings of the trial court, °7
the appellate court found that the mother maintained a disciplined
and harmonious home, that her alleged permissiveness had not unduly influenced the child, and that she had provided the child with
adequate religious instruction.1 0 Thus, the father's contention that
103. Id. The father maintained that the trial judge erred in not considering this fact
before awarding custody. The appellate court did not consider the merits of the issue because
it felt that the father waited too long to complain. Id.
104. Id. For further discussion of the use of religious factors in the best interest analysis,
see supra notes 88-89 and accompanying text.
105. Gattas, No. 85-66. The court did not inquire whether the custodian had made
housing arrangements in Canada. Id
106. Id. This was the phrase used by the mother, not the court.
107. For a discussion of the standard of review on appeal, see supra notes 60-64 and
accompanying text.
108. Gattas, No. 85-66.
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the mother was a fit custodian only so long as he could supervise
her activities was unsupportable.' °9 Finding that the factors highlighted by the mother were not outweighed by those presented by
the father, the court granted the mother permission to remove the
0
child from Tennessee."
C. A Superior Methodology
1. A Call for Structure and Analysis
The Gattas opinion demonstrates that Tennessee courts have failed
to develop an adequate methodology for analyzing best interest cases.
First, the courts have not defined the result they are hoping to achieve.
It is not clear whether "best interest of the child" means a happy
childhood or whether it means a childhood that leads to a welldeveloped adult regardless of the happiness experienced during
youth."' The definition adopted will influence which factors should
be stressed in a court's best interest analysis. Gattas, like other Tennessee cases, did not address this concern.
Second, the decision is unstructured. The best interest factors are
not divided into coherent categories, but are presented randomly
throughout the opinion. Thus, the decision is little more than an
outline of the evidence as presented by the litigants."12 Because
109. See supra note 102.
110. Gattas, No. 85-66.
The decision in Gattas hinged partially on the fact that the father did not meet his
burden of proof on either the removal or the change in custody issue. First, the father
could not show changed circumstances sufficient to justify a transfer of custody because
the wording of the divorce decree manifested that removal had been contemplated. One
provision of the divorce decree provided: "In the event Wife moves more than 100 miles
from Memphis, Tennessee, Husband shall be entitled to visit with the child away from the
Wife's residence for two months during [the summer]." Although the father argued that
this clause pertained to temporary removal, the evidence did not support this contention.
Thus, his request was barred by res judicata. Second, the father could not prove that removal
would be detrimental to the child's best interest. Even though he presented extensive evidence
demonstrating the advantages of requiring the child to remain in Memphis, the court held
that the preponderance of evidence did not show that the move would harm the child. Id.
Under the recent Tennessee Supreme Court case of Seessel v. Seessel, 748 S.W.2d 422
(Tenn. 1988), the father in Gattas would not have had to bear the burden of proof. If the
case had been decided subsequent to Seessel, removal might have been prohibited. Seessel,
however, does not affect the Authors' substantive criticisms of Gattas.
111. Charlow, Awarding Custody: The Best Interest of the Child and Other Fictions,
5 YALE L. & POL'Y Rav. 267, 268 (1987); see also supra note 71.
112. Although some may argue that this criticism goes more to style than substance,
it is the Authors' view that the problem lies more with the subject matter of the opinions
than with the judges' communicative abilities.
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Best Interest on the Move
organization is a prerequisite for an accurate analysis, courts should
develop a method for structuring the best interest standard. This
may be accomplished by dividing the factors into coherent categories,
such as economic, personal, and environmental groupings. Once this
structure is established, courts should stress to litigants the importance of presenting evidence on factors falling into each category.
Third, the court failed to articulate clearly the reasons underlying
its decision. It regurgitated the litany of factors presented by the
parties and then summarily announced its decision. With the information provided in the opinion, it is impossible to determine
exactly why the court believed that the move was not detrimental
to the child's best interest. Trial and appellate courts must begin to
include an evaluation of the relevant best interest factors in each
opinion. This assessment should indicate which factors weighed heavily in the decision, and which factors were inconsequential. Courts
also should explain why each factor was important or irrelevant.
For example, if economic factors did not influence the decision because the parents earned comparable salaries, this reasoning should
be explained. Similarly, if a court discounted economics on the
grounds that any differential in earning power could be corrected
with support payments, it should so state. Providing an analysis of
the various best interest factors will not only aid practitioners in
structuring future best interest arguments, but also will increase the
precedential value of a court's decision.
Fourth, in neglecting to divulge openly the factors ultimately
relied upon in determining best interest, the court easily could have
concealed some bias or predisposition that affected the analysis. Close
examination of the opinion reveals that the judges' "gut reaction"
may have been just as responsible for the outcome of the case as
was a thorough, but unwritten, legal analysis. Failure to disclose
fully the reasoning used to reach a finding of best interest merely
perpetuates the likelihood that a judge's personal views will improperly decide the fate of a child."'
Fifth, the vagueness of the best interest standard, especially in
4
the removal context, encourages litigation of the custody decision."
113. See, e.g., Pearson & Ring, supra note 71, at 719 (interviewing judges who, contrary
to statutory law, rely on their own preferences in making custody decisions).
114. Charlow, supra note 111, at 270. One study indicates that divorces involving children
are ten times more likely to be relitigated than those without children. See Westman, Cline,
Swift & Kramer, The Role of Child Psychiatry in Divorce, 23 ARCH. GEN. PSYCmATRY 416
(1970).
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Because courts have failed to articulate guidelines, both parties can
present case law that seemingly supports their position. Thus, both
parties believe they can prevail on the merits. In Gattas, both parents
presented several pieces of evidence to support their respective positions, and given the fact that they did not settle out of court, both
apparently felt confident of winning." 5
Finally, the appellate court's decision was based on an inadequately developed record. The trial court failed to demand evidence
on crucial factors such as the economic ramifications of the move
and the living arrangements available in Canada. The trial court also
neglected to require the parties to substantiate their statements. For
example, the mother maintained that the educational, recreational,
and cultural opportunities in Calgary were "excellent." In light of
the importance of these best interest factors and of the conflicting
testimony presented in this case, the trial court should have required
the mother to verify her assertions.
2.
Developing a Best Interest Test
16
Some courts have developed tests to help evaluate removal cases. 1
New York courts, for example, employ the "exceptional
circumstances" test to determine whether a custodial parent may
115. One author proposes that inquiry at the custody hearing should be "limited to a
determination of the reasons that the custody dispute [was not] resolved through negotiation.
The judge should ask what has been offered and why each party has refused to agree to the
other's offer." CQarlow, supra note 111, at 282. The author concludes that "[i]f the parents
cannot agree through the intervention of a neutral third party, then the parent who is blocking
agreement should justify his or her refusal to agree in terms of the needs of the child." Id. If
a satisfactory explanation is not forthcoming, then the court will assume that the uncooperative
parent is unable to place the child's best interest over his or her personal needs. The court should
then grant custody to the other parent. Id.
Although this proposal may discourage frivolous allegations, it creates numerous problems.
First, the approach does not work when one or both parents are unfit. Id. As the author admits,
"An abusive parent clearly does not avoid conflict and ... would not be granted custody....
The neglectful parent may want to do what is right to help the child, but may not have the
ability or training to do so." Id. at 282-83. Second, serious allegations might appear frivolous
because the complaining party has failed to gather sufficient proof. Id. at 283 n.91. Thus, custody
may be granted to an unfit parent. Third, the approach may raise procedural due process problems
because it effectively may bar parties from seeking redress of their grievances in court. See Boddie
v. Connecticut, 401 U.S. 371 (1971). Finally, the approach may conflict with the applicable rules
of evidence. See, e.g., FED. R. Evl. 408 (demonstrating the inadmissibility of statements made
during settlement negotiations).
116. These tests include the exceptional circumstances test, see infra notes 117-27 and accompanying text, the real advantage test, the superficial showing test, and the presumption test.
See generally Note, A Proposed "Best Interests" Test for Removing a Child from the Jurisdiction
Best Interest on the Move
19881
remove her child from the jurisdiction." 7 The exceptional circumstances test presumes that the child's best interest can be safeguarded
only when the custodial parent is forced to bear a heavy evidentiary
burden."' Therefore, removal generally is prohibited unless the custodian can prove that the child will directly benefit from the move
or that extraordinary circumstances require the custodian to leave
the jurisdiction.
Weiss v. Weiss" 9 is the epitome of the New York exceptional
circumstances test. In Weiss the noncustodial father sought to enjoin
his ex-wife from removing their son to Las Vegas. The mother's
move to Las Vegas was prompted by her desire to resume her singing
career and to escape the social and economic strictures of Westchester
of the Noncustodial Parent, 51 FoRDHAm L. REv. 489 (1982).
New Jersey courts have adopted the real advantage test, which equates the best interest of
the child with that of the custodian's post-divorce family unit. To determine whether relocation
will benefit the child, the court will examine (1) whether the move will improve the general
quality of life of the new family unit; (2) whether the move was motivated by a desire to defeat
the noncustodial parent's visitation rights; (3) whether the noncustodial parent is resisting relocation
to avoid increased support obligations; and (4) whether a reasonable visitation schedule can be
developed. See Cooper v. Cooper, 99 N.J. 42, 56-57, 491 A.2d 606, 613 (1984); D'Onofrio v.
D'Onofrio, 144 N.J. Super. 200, 206-07, 365 A.2d 27, 30 (1976).
Illinois courts have adopted the superficial showing test, which states that "the best interests
of a child subject to a custody decree are usually served by leaving the child with the existing
custodial parent." In re Marriage of Burgham, 86 III. App. 3d 341, 345, 408 N.E.2d 37, 40
(1980). According to Burgham, a prima fade case for removal is established when the custodian
expresses a desire to remove the child from the jurisdiction, demonstrates a "sensible reason"
for the move, and "superficially shows" that the move is consistent with the best interest of
the child. Id. at 345-46, 408 N.E.2d at 40. To satisfy the "superficial showing" element of this
test, the custodian merely has to prove that the move will not harm the child. Id. at 346, 408
N.E.2d at 40.
Minnesota and Colorado courts presume that a request by the custodial parent to remove
the child to another jurisdiction is in the best interest of the child. See Bernick v. Bernick, 31
Colo. App. 485, 505 P.2d 14 0972); Lucas v. Lucas, 389 N.W.2d 744 (Minn. Ct. App. 1986);
cf. Lees v. Lees, 404 N.W.2d 346 (Minn. Ct. App. 1987) (holding that the presumption does
not apply to cases in which the parents have joint legal and physical custody).
117. See, e.g., Zaleski v. Zaleski, 128 A.D.2d 865, 513 N.Y.S.2d 784 (1987); Bryan
v. Bryan, 99 A.D.2d 743, 471 N.Y.S.2d 650 (1984); Weiss v. Weiss, 76 A.D.2d 863, 428
N.Y.S.2d 506 (1980), aff'd, 52 N.Y.2d 170, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981).
118. "Burden" refers to both the burden of production and the burden of persuasion.
119. 52 N.Y.2d 170, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981). The mother argued in
part that the residency clause in the divorce decree allowed her to remove the child from
the jurisdiction. Id. at 173, 418 N.E.2d at 379, 436 N.Y.S.2d at 864. The clause provided
that "the Husband and the Wife shall continue to live separate and apart from each other
and ...
may reside ...
at such place or places of residence ...
as he or she shall respectively
choose." Id. The court of appeals characterized the clause as "boilerplate" language employed primarily to memorialize the separated status of the parents. Because the clause did
not refer to the child, the court held that the mother's contention was inaccurate. Id. at
174, 418 N.E.2d at 379, 436 N.Y.S.2d at 864.
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The mother testified that her own happiness and well-
being would benefit her son's best interest. She also presented evidence showing the availability of a suitable home, school, and church
in Las Vegas, and she agreed that the father should have longer
visits with the child during the summer and on holidays. 2 1 Fur-
thermore, the court acknowledged that the move was not motivated
by a desire to frustrate the father-son relationship. 122 Despite these
factors, the court held that the mother failed to show "exceptional
circumstances" and enjoined her from removing the child to Las
Vegas because she had not remarried, had no pressing health reasons
for moving, and had not secured a job in Nevada.'2 According to
Weiss, a custodial parent must demonstrate that her desire to relocate
is dictated by compelling health,'24 educational, 25 or financial' 26 considerations.
120. Id. at 173, 418 N.E.2d at 379, 436 N.Y.S.2d at 864. "[Tlhe mother further explained that, as a single person residing with her child in the former marital . . . residence
. I. she found herself confined by the social limitations of a community of married persons
and pressed by the impact of inflation on a relatively tight budget." Id.
121. Id. at 173-74, 176, 418 N.E.2d at 379-80, 436 N.Y.S.2d at 864-65. The son, who
was 1I years old, stated that he wanted to remain in New York to be close to his father.
Id. at 174, 418 N.E.2d at 379, 436 N.Y.S.2d at 864.
122. Id. at 175-76, 418 N.E.2d at 380, 436 N.Y.S.2d at 865. The New York exceptional
circumstances test emphasizes the significance of frequent and regular visitation between
the child and the noncustodial parent. See Note, supra note 116, at 502; see also Weiss,
52 N.Y.2d at 176, 418 N.E.2d at 380-81, 436 N.Y.S.2d at 865-66.
123. Weiss, 52 N.Y.2d at 177, 418 N.E.2d at 381, 436 N.Y.S.2d at 866.
124.
See, e.g., Deutsch v. Deutsch, 53 A.D.2d 861, 385 N.Y.S.2d 357 (1976), appeal
denied, 40 N.Y.2d 808, 392 N.Y.S.2d 1026 (1977) (allowing removal of the child to Florida,
where the mother was being treated for cancer).
125. In Harris v. Harris, 57 Misc. 2d 672, 293 N.Y.S.2d 592 (N.Y. Fain. Ct. 1968),
a custodial parent was allowed to remove her children to Evanston, Illinois, the location
of the only university in the country where she could obtain a doctorate degree in language
pathology. The court reasoned that the advanced degree would promote the children's best
interest because it promised the security of greater income and eventual tenure for the mother.
Id. at 675, 293 N.Y.S.2d at 595.
126. New York courts allow moves dictated by "pressing financial concerns." Priebe
v. Priebe, 81 A.D.2d 746, 747, 438 N.Y.S.2d 413, 414 (1981), aff'd, 55 N.Y.2d 997, 434
N.E.2d 708, 449 N.Y.S.2d 472 (1982); see also Bryan v. Bryan, 99 A.D.2d 743, 471 N.Y.S.2d
650 (1984). Single custodial parents must introduce proof that "satisfactory employment"
could not be obtained "in a location which would not unduly interfere with visitation" and
that the noncustodial parent is unable to pay more child support. Priebe, 81 A.D.2d at
747, 438 N.Y.S.2d at 414. A remarried custodial parent whose desire to move is occasioned
by her new spouse's job transfer must prove that the move is involuntary. See, e.g., Daghir
v. Daghir, 82 A.D.2d 191, 441 N.Y.S.2d 494 (1981) (prohibiting removal when the stepfather
voluntarily accepted a position in France), aff'd, 56 N.Y.2d 938, 439 N.E.2d 324, 453
N.Y.S.2d 609 (1982); Cmaylo v. Cmaylo, 76 A.D.2d 898, 429 N.Y.S.2d 44 (1980) (permitting
removal when the stepfather was involuntarily transferred to Texas by his employer and
the mother proved that employment opportunities in New York were limited).
1988]
Best Interest on the Move
The exceptional circumstances test imposes a strict burden of
proof on the custodial parent even if the divorce decree does not
contain a removal restriction. 27 This rigid standard guarantees that
the custodian has a legitimate reason for moving, that the child will
gain substantial benefits from the move, and that visitation with the
noncustodial parent is reduced only for justifiable reasons.
The exceptional circumstances test comes closer to a pure best
interest analysis than any other method. It also places the burdens
of proof and production on the correct party-the custodial parent.
For these reasons, Tennessee courts should seriously consider adopting the New York exceptional circumstances test as a first step
toward developing a more structured methodology for resolving
best interest cases.
IV.
REMEDIES FOR WRONGFUL REMOVAL' 2
When a custodial parent improperly removes a minor child from
the jurisdiction, the noncustodial parent may initiate various legal
actions to force the return of the child or to protect visitation rights.
A.
Contempt
By filing charges of civil contempt, 129 a noncustodial parent may
compel the custodian to (1) return the child to the jurisdiction or
(2) restore visitation. 3 0 When the court grants custody to one parent
subject to the visitation rights of the other, any act that frustrates
127. See Note, supra note 116, at 506. This burden is similar to that enunciated in the
recent Tennessee case of Seessel v. Seessel, 748 S.W.2d 422 (Tenn. 1988).
128. This portion of the Article assumes that the custodial parent was restricted, by
an injunction or a clause in the divorce decree, from removing the child from the jurisdiction
without prior approval.
An abridged version of the "Remedies for Wrongful Removal" section was published
as Dickerson & Stalnaker, Remedies for Wrongful Removal of Child from the Jurisdiction
by the Custodian, 2 TENN. FAm. L. LETTER, July 1988, at 9.
129. Broadly speaking, "contempt of court" involves committing acts that hinder, delay, or obstruct the administration of justice. Winfree v. State, 175 Tenn. 427, 135 S.W.2d
454 (1940); see also BLACK'S LAW DICTIONARY 288 (rev. 5th ed. 1979); 7 TENN. JUR. Contempt § 2 (1983). The purpose of a civil contempt proceeding is to provide a remedy for
an injured party by compelling compliance with a court order. Garrett v. Forest Lawn
Memorial Gardens, Inc., 588 S.W.2d 309 (Tenn. Ct. App. 1979). Civil contempt must be
distinguished from criminal contempt, which is used to vindicate the dignity and authority
of the law. Id. Willfulness is not an essential element of civil contempt. In re Crabtree, 39
Bankr. 702 (Bankr. E.D. Tenn. 1984).
130. Comment, Tortious Interference with Visitation Rights, 20 JOHN MARSHALL L.
REv. 310, 310-11 n.23 (1986).
Memphis State University Law Review
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visitation constitutes contempt of court. 3 ' Moreover, if the custodial parent has been enjoined from removing the child to another
jurisdiction, disregard of the injunction may support a contempt
citation.3 2 If the custodial parent is held in contempt of court she
may be fined, imprisoned, or both. 3
Unfortunately, civil contempt may provide an inadequate rem-
edy for noncustodial parents. First, civil contempt motions fre34
quently are dismissed on grounds of vagueness or uncertainty.
Second, contempt orders often are difficult to enforce because there
is no guarantee that they will be honored outside the jurisdiction
of the issuing court. 3 5 Third, contempt proceedings may be time
131. See, e.g., Arnold v. Gouvitsa, 735 S.W.2d 458, 459 (Tenn. Ct. App. 1987). See
generally Katz, Legal Remedies for Child Snatching, 15 FAm. L.Q. 103, 118 (1981).
132. Segelke v. Segelke, 584 S.W.2d 211 (Tenn. Ct. App. 1978) (upholding contempt
order based on violation of injunction prohibiting father from removing his children from
Tennessee); see also 7 TENN. Jut. Contempt § 3, at 5 (1983).
133. TENN. CODE ANN. § 29-9-103 (Supp. 1988); id. § 29-9-105 (1980) (providing that
if the "contempt consists of the performance of a forbidden act, the person may be imprisoned until the act is rectified by placing matters and person in status quo, or by the
payment of damages"). Before issuing the contempt citation, courts consider the nature
and extent of the harm threatened by continued disobedience and whether the proposed
punishment will effectuate the desired result. See United States v. United Mine Workers,
330 U.S. 258, 304 (1947).
134. See Katz, supra note 131, at 117.
135. Professor Sanford Katz stated:
Generally, a contempt citation is only as broad as the jurisdiction of the court
that issues it. When a parent removes a child from the state where the issuing
court is located, there is no assurance that the citation will be enforced. In
practice, however, the courts often cooperate under the principles of comity.
Just as courts typically recognize the validity of another state's custody decree,
they also recognize that violation of another state's decree is an act in contempt
of court. Since the second state's court is not the one that issued the original
decree it may be reluctant to issue a contempt citation on its own authority;
however, it will often also be reluctant to grant a legal forum to the parent
who has acted in contempt.
Katz, supra note 131, at 118-19; cf. Hoyle v. Wilson, No. 87-17-I, 13 TAM 4-1 (Tenn. Ct.
App. Feb. 22, 1988) (LEXIS, States library, Tenn. App. file) (stating that "[b]y filing a
URESA petition after fleeing to another State, the custodial parent can avoid the jurisdiction
of the rendering State's courts to impose sanctions for contempt of orders regarding visitation").
The Uniform Child Custody Jurisdiction Act (UCCJA), 9 U.L.A. 111 (1979 & Supp.
1986) (codified in Tennessee as TEr. CODE Am. §§ 36-6-202 to -302 (1980 & Supp. 1988)),
may help alleviate various enforcement problems. See generally 1 H. CLARK, Tan LAW OF
Domsc RELATIONS IN ran UNITED STATES § 13.5 (2d ed. 1987); Bodenheimer, Interstate
Custody: Initial Jurisdiction and Continuing Jurisdiction Under the UCCJA, 14 FAm. L.Q.
203 (1981). According to Professor Brigitte Bodenheimer, the principal draftsman of the
UCCJA, when an initial decree awards custody to one parent who subsequently moves to
another state, the first state retains jurisdiction as long as the noncustodial parent continues
1988]
Best Interest on the Move
consuming and may negatively affect the child. Finally, contempt
orders do not compensate the noncustodial parent for court costs,
legal fees, or injuries such as emotional distress.13 6
B.
Withholding Alimony
Most jurisdictions do not permit a parent whose visitation rights
have been frustrated to withhold alimony payments. a7 These courts
reason that the duty to pay alimony and the right of visitation are
not mutually dependent and should not be linked. 3 A minority
of courts, however, does allow a noncustodial parent to terminate
alimony payments when the custodian violates a provision of the
divorce decree pertaining to child custody or visitation. 319 In these
states, a custodial parent who improperly removes a child will be
estopped from enlisting the court's aid in collecting alimony until
she returns the child to the original jurisdiction. "40
to live in the first state. Bodenheimer, The Uniform Child Custody Jurisdiction Act: A
Legislative Remedy for Children Caught in the Conflict of Laws, 22 VAND. L. REv. 1207,
1237 (1969) [hereinafter Bodenheimer, Children Caught].
In her article, Professor Bodenheimer analyzed a hypothetical situation in which a divorce
decree issued in state A gives custody of the children to the mother, subject to the visitation
rights of the father. The mother and children move to state B, with or without the court's
permission. Bodenheimer argues that state A has continuing and exclusive jurisdiction, and
"the courts in state B may not hear the [mother's] petition to make her the sole custodian,
eliminate visitation rights, or make any other modification of the decree, even though state
B has in the meantime become the 'home state' under section 3 [TENN. CODE Ann. § 366-203 (Supp. 1987)]." Id.
The UCCJA also helps by stressing the importance of interstate judicial communication.
UmNE.CHILD CUSTODY JURISDICTION ACT § 6, 9 U.L.A. 134 (1979); TENN. CODE ANN. §
36-6-207 (1980).
136. See Bodenheimer, Children Caught, supra note 135, at 1237. In addition, fines
that may accumulate during the period of contempt may provide the custodian with a great
incentive for remaining out of state.
137. See, e.g., Blank v. District Court, 10 Colo. 114, 543 P.2d 1255 (1975); Comiskey
App. 3d 17, 366 N.E.2d 87 (1977); Stancill v. Stancill, 286 Md. 530,
v. Comiskey, 48 Ill.
408 A.2d 1030 (1979).
138. See, e.g., Comiskey, 48 I1. App. 3d at 25, 366 N.E.2d at 93 (holding that "[t]he
duty to permit visitation is .. . completely independent of the duty to make payment of
alimony").
139. See, e.g., Clarke v. Clarke, 4 Cal. App. 3d 538, 84 Cal. Rptr. 393 (1970); Gordon
v. Gordon, 368 So. 2d 1356 (Fla. Dist. Ct. App. 1979); Ruquist v. Ruquist, 367 Mass. 662,
327 N.E.2d 742 (1975).
Presumably, alimony payments may be reinstated when the violation of the decree ends.
2 H. CLARK, supra note 16, § 17.6, at 283.
140. See Briggs v. Briggs, 319 Mass. 149, 152-53, 65 N.E.2d 9, 11 (1946). In minority
jurisdictions, the noncustodial parent will not be held in contempt for failing to pay alimony
during the period he is denied visitation. See Note, supra note 7, at 444.
Memphis State University Law Review
[Vol. 18
Although Tennessee courts have not directly addressed the validity of an alimony-visitation linkage, there are indications that
this relationship is permissible. Tennessee Code Annotated, for example, provides that a court, when determining alimony, may consider "[s]uch other factors . . . as are necessary to [determine] the
equities between the parties." ' 14l Therefore, a court may consider
certain breaches of the divorce decree, such as violation of a removal restriction, when a modification of alimony is requested.
Tennessee courts have approved a reduction of alimony following
the recipient spouse's misconduct. 142 This holding might provide an
opening for reducing alimony after a custodial parent wrongfully
removes a child from the jurisdiction. Finally, Professor Walton
Garrett, author of Tennessee Divorce, Alimony and Child Custody,143 suggests that "[i] f the former spouse has removed the children from the jurisdiction without the required permission ... the
obligor may petition the court for suspension of alimony, or may
assert this as a defense to an action for enforcement."'"
Even if Tennessee expressly links alimony payments with visitation, the remedy might prove inadequate. Besides having to overcome the res judicata effects of the original alimony award,' 45 a
noncustodial parent may be hesitant to withhold alimony, realizing
that such an action might adversely affect the child's welfare. 1'
141. TENNi.CODE ANN. § 36-5-101(d)(11) (Supp. 1988).
142. Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn. Ct. App. 1985).
143. W. GARRar, supra note 16.
144. Id. § 20-4, at 190 (footnote omitted). Professor Garrett does not cite any Tennessee
authority to support this proposition, but instead refers to the first edition of Professor
Homer Clark's The Law of Domestic Relations in the United States. The second edition
of Professor Clark's treatise retains this assertion. See 2 H. CLARK, supra note 16, § 17.6.
Tennessee judges also view reduction or suspension of alimony as a possible remedy in
improper removal cases. Interview with Judge Muriel Robinson, Tennessee Circuit Court,
in Nashville, Tenn. (Mar. 9, 1988). Judge Robinson believes that sufficient statutory authority
exists to justify abatement of alimony. Judge William Koch, supranote 18, would be reluctant
to impose this remedy but believed that economic sanctions might provide effective methods
of encouraging compliance with the divorce decree.
145. See generally W. GARRETT, supra note 16, § 20-3.
146. Custodial parents frequently use a portion of the alimony payments to support
the child. Because alimony payments may be deducted by the noncustodial parent under
I.R.C. § 71(a), and child support payments may not be deducted by the noncustodial parent
under I.R.C. § 71(b), the noncustodial parent may negotiate to pay his ex-wife a greater
sum of money if she is willing to label the payments alimony. See I.R.C. § 71 (P-H 1988).
Because the custodial parent is often in a lower income bracket than the noncustodial parent,
such labeling might be mutually advantageous. As a result of this "bargain," part of the
"alimony" is actually support for the child. See Note, supra note 7, at 444 n.66.
Allowing suspension of alimony also might provoke the child's hostility toward the
19881
Best Interest on the Move
C. Withholding Child Support
Withholding child support payments is the most controversial
remedy a noncustodial parent may request for visitation
violations.147 Because the duties of support and visitation are in49
dependent, 48 and because termination of support harms the child,
most courts do not permit a noncustodial parent who has been
denied visitation to reduce or terminate child support payments. 50
Nevertheless, courts have held that under extraordinary circumstances a noncustodial parent may withhold child support payments
until visitation is restored.'
noncustodial parent. See Stancill v. Stancill, 286 Md. 530, 538-39, 408 A.2d 1030, 1035
(1979).
147. See generally Annotation, Removal by CustodialParentsof Childfrom Jurisdiction
in Violation of Court Order as Justifying Termination, Suspension, or Reduction of Child
Support Payments, 8 A.L.R.4th 1232 (1981) (citing cases permitting and prohibiting termination of child support payments).
148. Hester v. Hester, 59 Tenn. App. 613, 443 S.W.2d 28 (1969). The court observed:
Provisions in divorce decrees for support and visitation rights have separate
and distinct purposes. Support payments are decreed to meet the material needs
of the child. Visitation rights are also for the benefit of the child, as well as
the father. Neither should be left to depend upon the will or whim of the
parents ....
Id. at 620, 443 S.W.2d at 31.
149. Hoyle v. Wilson, No. 87-17-I, 13 TAM 4-1 (Tenn. Feb. 22, 1988) (LEXIS, States
library, Tenn. App. file). The Hoyle court noted that "the likelihood of harm to the child
or children if payment of support is denied to any extent" also should be considered because
"the children caught in the conflict ... are usually innocent victims of one or both of the
parents' vindictive and irresponsible behavior." Id.
150. See, e.g., Conrad v. Conrad, 208 Neb. 588, 304 N.W.2d 674 (1981) (holding that
the father was not justified in failing to make child support payments after the mother
improperly removed the child from the jurisdiction, thus frustrating visitation); Small v.
Schnitzer, 85 A.D.2d 641, 445 N.Y.S.2d 13 (1981) (declaring that the mother's unapproved
removal of the parties' daughter to Texas did not suspend the father's obligation to pay
child support); Fritschler v. Fritschler, 60 Wis. 2d 283, 208 N.W.2d 336 (1973) (concluding
that the mother's wrongful removal of the child from the jurisdiction was an inadequate
reason for relieving the father of his support obligation).
151. See, e.g., H. v. H., 415 A.2d 510 (Del. Faro. Ct. 1979) (reducing the father's
child support obligation after the mother improperly removed the child to Norway); Gardner
v. Gardner, 494 So. 2d 500 (Fla. Dist. Ct. App. 1986) (stating that the custodial parent,
who owes an affirmative duty to the noncustodial parent to encourage visitation, can be
denied judicial assistance in collecting arrearages and/or suffer a suspension of child support
payments if this duty is breached); Ryan v. Ryan, 300 Minn. 244, 219 N.W.2d 912 (1974)
(suspending child support payments after the mother violated a post-divorce order denying
her permission to remove the child from the state); Weiss v. Weiss, 76 A.D.2d 863, 428
N.Y.S.2d 506 (1980) (holding that the father would be relieved of his child support and
alimony obligations if the mother interfered with his visitation rights by removing the child
from the jurisdiction), aff'd, 52 N.Y.2d 170, 418 N.E.2d 377, 436 N.Y.S.2d 862 (1981).
Some courts hold that the noncustodial parent's obligation is terminated when access
Memphis State University Law Review
[Vol. 18
The Tennessee Supreme Court recently ruled that a custodial
parent may not be entitled to collect child support arrearages if
she interferes with her ex-spouse's court-ordered visitation rights.
In Hoyle v. Wilson 5 2 the mother moved the parties' two sons to
Virginia without informing the father.'5 3 Following this move, the
father faced many difficulties in exercising his visitation rights and
sought judicial assistance to enforce these rights. On June 9, 1982,
approximately four years after removal, the father obtained a court
order requiring the mother to allow the children to visit Tennessee
for seven weeks during the summer. The father sent money to cover
the airfare, but the children did not arrive as scheduled. Subsequently, the father lost all contact with his ex-wife and sons, and
54
he ceased paying child support.'
In July 1984, an Oklahoma District Attorney contacted the father about resuming child support payments. The father complied
immediately but contested the mother's efforts to collect arrearages
totalling $6540.' 5 At trial, the father recounted the difficulties he
had experienced in visiting his sons and testified that he stopped
6
paying child support only after he lost contact with his ex-wife.'1
In October 1985, the trial court entered its order forgiving the $6540
to the children is denied and the divorce decree conditions payment of child support on
visitation. See, e.g., Boyer v. Masters, 501 P.2d 130 (Colo. Ct. App. 1972). Others permit
the noncustodial parent to withhold payments if the child will not be economically disadvantaged. See, e.g., Massey v. Massey, 471 S.W.2d 771, 772 (Ark. 1971); Chazen v.
Chazen, 107 Mich. App. 485, 309 N.W.2d 612 (1981).
152. Hoyle, No. 87-17-, 13 TAM 4-1. This action was initiated under the Uniform
Reciprocal Enforcement of Support Act (URESA), TENN. CODE ANN. §§ 36-5-201 to -613
(1984 & Supp. 1988). The case presented an issue of first impression in Tennessee: "the
scope of jurisdiction available to a trial court in URESA proceedings when the court retains
continuing jurisdiction over the underlying support obligation upon which the URESA action
is premised." Hoyle, No. 87-17-1, 13 TAM 4-1.
153. Hoyle, No. 87-17-I, 13 TAM 4-1. The parties were divorced in the circuit court
of Davidson County, Tennessee on December 5, 1978. The court awarded custody to the
mother. The father was afforded visitation rights and was ordered to pay sixty dollars per
week child support until the children reached majority. Id.
154. Id. The father last saw his sons at Christmas in 1981. When the children did not
arrive for their court-ordered visit in July 1982, the father attempted to contact the mother,
but to no avail. He also asked the mother's parents to help him locate the children, but
they would not cooperate. The mother never notified the father that she had moved to
Oklahoma. Id.; see Loggins, Denying Visitation Could Cost, The Tennessean, Jan. 28, 1988,
at 1, col. 1.
155. Hoyle, No. 87-17-1, 13 TAM 4-1. The father alleged that the mother was estopped
from enforcing back payments because of her contempt violations (denying access to the
children) and because of the equitable concept of laches (for waiting almost three years to
file suit). Id.
156. Id.
19881
Best Interest on the Move
arrearage.' 7 The court of appeals reversed on grounds that the trial
court lacked jurisdiction to excuse the arrearage and that forgiveness
of arrearages in child support payments was contrary to Tennessee
law. The Supreme Court of Tennessee reversed the court of appeals
and reinstated the judgment of the trial court. 58
The State supreme court asserted that Tennessee law permits
forgiveness of child support arrearages under certain circumstances.5 9 These circumstances are not defined, but are left to the
discretion of the trial judge, who should weigh the competing equities. '6 Although the court acknowledged the distinct purposes
served by child support and visitation,'16 1 and reaffirmed the policy
favoring enforcement of support orders, 162 it concluded that in this
instance the trial court had not abused its discretion by forgiving
63
the arrearage. 1
The threat of losing support payments may deter a custodial
parent from improperly removing a child from the jurisdiction. Yet,
use of this remedy is unappealing because it tends to defeat the
ultimate goal of the court and the noncustodial parent -protecting
the welfare of the child.
157. Id. The court did, however, order the father to pay an arrearage of $240 that
accumulated prior to the mother's move to Virginia. Id.
The court stressed that the father ideally should have petitioned the trial court to suspend
his support obligation and to have paid sums due to the clerk of court until his liability
could be determined. Id.
158. Id. The Tennessee Supreme Court unanimously held that jurisdiction under URESA
is not a problem when the divorce decree is issued in Tennessee and one spouse is trying
to collect payments from another who still resides in Tennessee. Id.
159. Id. (indicating that "established Tennessee law does not absolutely prohibit forgiveness of arrearages in some circumstances").
160. Id. (stating that "the principles of equity are heavily relied on to evaluate the
conduct of the parties, the circumstances of the case, and the potential harm to the children").
Tennessee has applied equitable principles in a URESA proceeding. Koehler v. Koehler, 559
S.W.2d 944 (Tenn. Ct. App. 1977). The Koehler court held that "the language of the
Tennessee statute clearly indicates that the Court is vested with authority to increase or
reduce child support payments, depending upon the facts and circumstances of each case."
Id. at 950 (citing TENN. CODE ANN. § 36-907 (1976) (current version at TENN. CODE ANN.
§ 36-5-297 (1984)).
161. Hoyle, No. 87-17-I, 13 TAM 4-1 (quoting Hester v. Hester, 59 Tenn. App. 613,
620, 443 S.W.2d 28, 31 (1968)).
162. Hoyle, No. 87-17-1, 13 TAM 4-1.
163. Id. (holding that "trial courts [clearly] have the discretion in such cases to suspend
or forgive arrearages in support payments; the cases do not set down a rule so inflexible
as to tie the hands of courts faced with circumstances in which the application of general
principles would work an injustice on an innocent party, while unduly benefiting a party
whose wrongful conduct created the problem, or where both parties share in the fault").
Memphis State University Law Review
D.
[Vol. 18
Punitive Modification
If a custodial parent removes a child from the jurisdiction in
derogation of a court order, the noncustodial parent may petition
the court for a change in custody. 64 Because custody is transferred
to "punish" the custodial parent, this remedy is known as "punitive
modification." 65 Although punitive decrees generally are disfavored
because they are not based on the best interest of the child, some
courts have approved punitive modifications.' 66
67 for example, a Wisconsin trial court
In Fritschlerv. Fritschler,1
denied the mother's request for permission to remove her children
to Colorado. The mother moved despite the order, and the court
transferred custody to the father. 68 The Supreme Court of Wisconsin affirmed the order transferring custody to the father despite
"best interest" evidence which indicated that the children should
live with their mother, whether in Wisconsin or Colorado. 69 De-
claring that the mother's reasons for moving were insufficient,
70
164. See generally Annotation, Interference by Custodian of Child with Noncustodial
Parent's Visitation Rights as Groundfor Change of Custody, 28 A.L.R.4th 9 (1984 & Supp.
1987); Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and RemainingProblems: PunitiveDecrees, Joint Custody, and Excessive Modifications,65 C.A.F.
L. REv. 978, 1003-09 (1977).
165. Bodenheimer, supra note 164, at 1003. Professor Bodenheimer indicates that punitive decrees may violate the custodial parent's right to travel. See id. at 1004, 1008-09.
See also supra note 16 (discussing the constitutional right to travel).
166. See, e.g., Berlin v. Berlin, 239 Md. 52, 210 A.2d 380 (1965). In Berlin a Maryland
court transferred custody of two children to the father from the mother, with whom the
children had lived in New York for over six years. The shift in custody was based on the
mother's violation of the visitation provisions of the Maryland divorce decree. The New
York court refused to enforce the punitive Maryland decree because of its disruptive impact
on the children's lives. Berlin v. Berlin, 21 N.Y.2d 371, 235 N.E.2d 109, 288 N.Y.S.2d 44
(1967), cert. denied, 393 U.S. 840 (1968). See also Annotation, supra note 164, at 38-41
(discussing cases in which courts held a change in custody unwarranted).
167. 60 Wis. 2d 283, 208 N.W.2d 336 (1973). See also Annotation, supra note 164,
at 35-38 (discussing cases endorsing a change in custody).
168. Id. at 285, 208 N.W.2d at 337. Soon after the mother moved to Colorado she
petitioned the Wisconsin court for permission to keep the children with her. The father
countered with a motion for change of custody. Id.
169. Id. at 286, 208 N.W.2d at 337-38. At one pretrial hearing, the court decided that
although the mother and father were both fit custodians, the best interest of the children
dictated that custody remain with the mother, but only if she remained in Wisconsin. Id.
at 286, 208 N.W.2d at 337. At trial, the mother presented several family specialists and
counselors who recommended that she retain custody regardless of her residence. Id. at 286,
208 N.W.2d at 338.
170. Id. at 287, 208 N.W.2d at 338. "Reasons cited for her move were to escape from
social embarrassment resulting from her husband's reputation as a criminal law attorney,
to take advantage of what she considered to be better job opportunities . . . and better
recreational facilities for the children .... " Id.
19881
Best Interest on the Move
the court held that the father, who was a "competent and leading
attorney," should have custody.17 ' Although the court conceded
that the father could afford to exercise his visitation rights by
travelling to Colorado and could arrange to bring the children to
Wisconsin for several weeks each summer, the court insisted that
these alternatives were not in the children's best interest. 72 Fritschler
illustrates the punitive decree in its purest form.
73
While the court
paid lip service to the best interest standard and peppered its order
with appropriate terminology, the change was based on the mother's
"guilt," not the children's welfare.
Tennessee courts prohibit punitive modification of custody decrees. In Seymour v. Seymour' 74 the mother moved to Maryland
and contemporaneously petitioned the court for permission to remove the children from Tennessee. Contending that removal would
frustrate his visitation rights, the father opposed the mother's motion and sought a change in custody. The trial court denied the
mother's petition, held her in contempt for moving the children,
and shifted custody to the father. 75 The appellate court held that
the chancellor abused his discretion by transferring custody to the
father in order to punish the mother. 7 6 Moreover, a best interest
analysis did not precede the modification: the father did not allege
that it would be in the best interest of the children to change cus-
171. Id. at 292, 208 N.W.2d at 341 (Hansen, J., dissenting) (quoting memorandum
opinion of the trial court).
172. Id. at 289, 208 N.W.2d at 339 (majority opinion). A vigorous dissent stressed that
only factors related to the best interest of the children could be considered in custody
placement orders. "The financial income, the professional status and the community standing
of the two ex-spouses are not . .. proper factors." Id. at 292-93, 208 N.W.2d at 340-41
(Hansen, J., dissenting).
173. Bodenheimer, supra note 164, at 1004 (observing that "[tihe mother was punished
for disobeying the court").
174. Shelby Equity No. 37, No. D11852-2 (Tenn. Ct. App. Oct. 1, 1987) (LEXIS, States
library, Tenn. App. file).
175. Id. The chancellor stated that "[s]he has been in contempt of Court before. She's
in contempt of Court again. And the Court feels that she is entitled to no consideration
by this Court and respectfully denies her request for permission to move the children to
Virginia or Maryland." Id.
176. The appellate court stated that the chancellor was "clearly irritated" by the mother
and "denied her access to judicial relief ... to punish her." Id. See also Hayes v. Hayes,
No. 54, 12 TAM 23-15 (Tenn. Ct. App. Apr. 24, 1987) (LEXIS, States library, Tenn. App.
file). In Hayes the father filed a petition alleging that the mother was planning to move
to Memphis. The trial judge held that custody would change if the mother indeed moved.
Asserting that there was no evidence supporting the trial court's finding that it was in the
best interest of the child to automatically shift custody upon removal, the appellate court
reversed. Hayes, No. 54, 12 TAM 23-15.
Memphis State University Law Review
[Vol. 18
tody, and "nowhere in his findings did the Chancellor state that
it would be in the best interest of the children to change custody."'7
The appeals court then conducted its own best interest analysis and
concluded that custody should remain with the mother. 7 8 Thus,
I7 9
punitive modification is not a viable remedy in Tennessee.
E.
1.
Tort Remedies
Intentional Infliction of Emotional Distress
A suit for intentional infliction of emotional distress is an appropriate remedy for a noncustodial parent who is denied access
to his child. 180 Parents who are prevented from communicating with
or visiting their children frequently experience various forms of
emotional distress.' 8 ' Problems experienced by noncustodial parents
have included dramatic weight loss, hypertension, depression, and
various sleeping and eating disorders. 82 The Restatement (Second)
of Torts defines the elements of intentional infliction of emotional
distress as: (1) outrageous conduct by the defendant; (2) with intent
or with reckless disregard of the probability of causing harm; (3)
severe emotional distress of the plaintiff; (4) proximately caused
by the defendant.
83
177. Seymour, Shelby Equity No. 37, No. D11852-2.
178. Id. See supra notes 62-63 and accompanying text.
179. See also Collins v. Collins, 5 TAM 24-10 (Tenn. Ct. App. April 29, 1980) (stating
that if the change in custody from the mother to the father had been based solely on the
mother's failure to comply with the father's visitation rights and the best interest of the
child had not been considered, the modification would have been reversible error).
180. 2 S. SCHWEITZER, CYCLOPEDIA OF TRAsL PRACTICE § 566 (2d ed. 1970) (suggesting
that the rule allowing recovery for intentional infliction of emotional distress is "especially
applicable" in the realm of domestic relations).
181. See Comment, supra note 130, at 314 nn.46-47 (citing, inter alia, Johannes v.
Sloan, No. 79C0169 (Cir. Ct. Kankakee Cty. Ill. Mar. 26, 1981), in which a noncustodial
parent suffered severe emotional distress when he was denied access to his children for many
years). Studies have authenticated the extent of the injuries incurred by parents who have
been denied access to their children. See, e.g., Grief, Fathers, Children, and Joint Custody,
49 Am. J. ORTHOPSYCHIATRY 311 (1979).
182. Grief, supra note 181, at 316. Other problems include: dental problems, rheumatoid
arthritis, psychosomatic complaints ranging from throbbing backaches to fear of a collapsed
lung, increased alcohol consumption, and changes in sexual performance. Id.
183. RESTATEMENT (SECOND) OF TORTS § 46 (1977) [hereinafter RESTATEMENT]; see also
R. KEETON, D. DOBBS, P. KEETON & D. OWEN, PROSSER AND KEETON ON THE LAW OF
TORTS § 612 (5th ed. 1984) [hereinafter PROSSER AND KEETON].
19881
Best Interest on the Move
The 1978 Vermont case of Sheltra v. Smith'8 applied Restate-
ment section 46185 in the visitation context. The noncustodial mother
allegedly suffered acute mental distress as a result of the father's
86
obstruction of her visitation rights and she sued for damages.1
The court held that the mother had established a prima facie case
of intentional infliction of emotional distress under the Restatement's definition and therefore was entitled to argue the case on
187
the merits.
More recently, the Fourth Circuit Court of Appeals affirmed
a monetary award to a noncustodial parent for his ex-wife's intentional infliction of emotional distress. In Raftery v. Scott'8 the
custodial mother secretly removed the child from New York. 18 9 Four
years later, the noncustodial father discovered that his former spouse
had remarried and was living in Virginia. The father sued in Virginia
state court to enforce the visitation provisions of the New York
divorce decree. Although the Virginia court ordered structured visitation, this solution proved unworkable. The father then com-
menced an action against the mother for intentional infliction of
emotional distress.' 90 The federal court held that the evidence supported a finding that the mother intentionally attempted to destroy
the father-son relationship and approved the jury's award of damages
.1
184.
136 vt. 472, 392 A.2d 431 (1978).
185. See RESTATEMENT, supra note 183, § 46 comment c & caveat (asserting that intentional infliction of emotional distress is a relatively new tort whose "ultimate limits"
have yet to be determined).
186. Sheltra, 136 Vt. at 472, 392 A.2d at 431.
187. Id. at 475, 392 A.2d at 433.
188. 756 F.2d 335 (4th Cir. 1985). The jury returned a verdict against the defendant
of $40,000 in compensatory damages and $10,000 in punitive damages. Id. at 336. Raftery
was a diversity case brought by a New York citizen against a Virginia citizen. Id.
189. In May 1977, while the divorce decree was pending, the mother left New York
with the child. One month later she was awarded custody. Id. at 337. The Fourth Circuit
failed to explain the rationale behind the trial court's custody decision.
190. A psychologist testified that the father suffered from " 'reactive depression' triggered by the mother's 'conduct toward the son and his relationship with [the son].' " Id.
The court distinguished a cause of action for intentional infliction of emotional distress
from the tort of alienation of affection, which had been statutorily abrogated in Virginia.
Id. at 338, 339 nn.3-4.
191. Id. at 337. The court cautioned, however, that "something much more than ...
aggravation must be shown" to establish a case of emotional distress. Id. at 340. Aware
of some attorneys' concern that the decision would result in an "avalanche of cases" between
antagonistic ex-spouses, the court concluded that "[t]he harm of deliberate frustration of
a close and affectionate relationship between parent and child . . . were there no remedy
available to a parent who as a result was psychologically damaged strikes us as more potentially a danger to society." Id.
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Tennessee courts have recognized the tort of intentional infliction of emotional distress, 92 but have not applied the cause of
action in the removal/visitation context. The lack of in-state
precedent, however, should not discourage attorneys from asserting
this remedy if all of the prima facie elements are satisfied.
Other than the general problems associated with tort actions,
such as incurring sizeable legal fees and court costs, the major
drawback in emotional distress cases is that many of the elements
are difficult to prove: the plaintiff often is unable to demonstrate
that the defendant's conduct was "outrageous," 93 or that the emotional suffering was "severe." 94 In addition, any damages assessed
against the custodial parent may be minimal, while the cost of the
court battle may adversely affect the economic well being of the
child. 19
2.
Intentional Interference with Visitation
To avoid many of the difficulties associated with emotional distress cases, l9 some noncustodial parents simply have alleged that
the custodian tortiously interfered with visitation. 197 To state a claim
under this theory, the noncustodial parent need only prove that
the custodian interfered with his right to visitation and that he
suffered damages as a result.1 9
Noncustodial parents should be allowed to recover under this
tort because interference with full custody is already a generally
192. See, e.g., Moorhead v. J.C. Penney, Co., 555 S.W.2d 713 (Tenn. 1977); Bringle
v. Methodist Hosp., 701 S.W.2d 622 (Tenn. Ct. App. 1985).
193. See generally Givelber, The Right to Minimum Social Decency and the Limits of
Evenhandedness: Intentional Infliction of Emotional Distress by Outrageous Conduct, 82
COLUM.
L. REv. 42, 54 (1982).
Dean Prosser and Professor Keeton explain that "[tihe extreme and outrageous nature
of the conduct may arise not so much from what is done as from abuse by the defendant
of some relation or position which gives the defendant actual or apparent power to damage
the plaintiff's interest." PROSSER AND KEETON, supra note 183, § 12, at 61.
194. See generally PROSSER AND KEETON, supra note 183, § 12.
195. Comment, supra note 130, at 317 n.64. According to one commentator, "[T]ort
actions are often costly and time consuming. Moreover, the interfering party is usually a
custodial mother [with] limited financial resources. Thus, the plaintiff's cost of litigation
is not likely to produce a significant judgment for damages." Id. at 316-17.
196. See supra notes 193-95 and accompanying text.
197. See, e.g., Ruffalo v. United States, 590 F. Supp. 706 (W.D. Mo. 1984); Segel v.
Segel, 179 Cal. App. 3d 602, 224 Cal. Rptr. 591 (1986).
198.
Ruffalo, 590 F. Supp. at 713.
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recognized cause of action. 199 Although the injury may be less severe
when visitation, rather than full custody is at stake, such a difference relates to damages rather than to liability. 200 The purpose
of the tortious interference action is to protect the parent-child
relationship and logically should be extended to injured noncus20 1
todial parents.
Ruffalo v. United State202 was the first case to recognize an
independent tort for custodial interference with visitation. 203 In Ruffalo the mother sought injunctive relief and damages from the federal government for restricting access to her son. 204 In 1978, the
mother's ex-husband and son were admitted into a federal witness
protection program. The mother was not informed of her son's
whereabouts and was prevented from communicating with him for
almost four years. 20 Applying Missouri law, the federal district
court held that the government had interfered with the mother's
visitation and awarded her damages. 2°6
Although tortious interference with visitation is not yet recognized in Tennessee, it is a remedy worth considering. A major
advantage of any tort remedy is that, if successful, it will come as
close as possible to making the noncustodial parent "whole"199. Id. at 711; see also PROSSER AND KEETON, supra note 183, at 124 (discussing the
development and application of the tort for custodial interference). Restatement (Second)
of Torts section 700 suggests that a custodial parent may sue any party who abducts or
intentionally induces the child to leave home. RESTATEMENT, supra note 183, § 700 (1977).
But see id. comment c (suggesting that when parents have been awarded joint custody "no
action can be brought against one of the parents who abducts or induces the child to leave
the other" parent). No Tennessee cases have discussed section 700.
200. Ruffalo, 590 F. Supp. at 711. In the context of custodial interference, damages
are presumed. A noncustodial parent, however, must prove his damages. See id. at 713;
RESTATEMENT, supra note 183, § 700 comment d; Note, Interference with Visitation as an
Independent Tort, 24 J. F A. L. 481, 493 (1985).
201. See generally Comment, supra note 130, at 314-22.
202. 590 F. Supp. 706 (W.D. Mo. 1984). For an account of the "tortious" procedural
history of Ruffalo, see Note, supra note 200, at 485-88.
203. See Ruffalo, 590 F. Supp. at 711 (acknowledging that the lawsuit was the first
of its kind).
204. Id. at 708. A psychologist testified that the mother suffered emotional damage
due to her "disenfranchisement as a parent." Id.
205. Id. at 707. "Telephone communication began in 1983, about the time of a court
of appeals decision containing favorable analysis of her claims." Id.
206. "Plaintiff asserts a claim in excess of one million dollars for federal destruction
of her right to custody ... denial of due process, and interference with her parental role."
Id. at 708 (footnote omitted). The court, however, "valued" the visitation and communication loss during the first year at $8000 and at $2500 for each subsequent year. Id. at
714. Missouri had not previously recognized the action of tortious interference with visitation.
It had, however, recognized a cause of action of interference with full custody. Id. at 713.
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financially and emotionally. 2 7 A noncustodial parent who pleads
tortious interference potentially may recover damages for emotional
distress, legal fees, and other costs associated with enforcement of
the visitation order. 20 8 Because the new tort eliminates many of the
elements of intentional infliction of emotional distress, it is easier
for a plaintiff to make a prima facie showing and to restore visitation and recover damages. Finally, tortious interference provides
an independent, "custom-made" remedy for the increasingly serious problem of custodial removal. Unfortunately, the remedy is
not a cure-all. As with intentional infliction of emotional distress,
a money award against the custodian may harm the child emotionally and economically.
F.
Kidnapping Charges
Although kidnapping is a felony in Tennessee, 209 the "confinement, detention, or moving of a child by a parent" does not constitute aggravated kidnapping. 210 This language, coupled with the
implication that kidnapping is a violation of full custody, appears
to exempt custodial removal from the scope of the statute. Therefore, kidnapping charges filed against a custodial parent rarely succeed.
The noncustodial parent may, however, seek relief under the
federal Parental Kidnapping Prevention Act (PKPA).21' Enacted in
1980, the PKPA preempts state kidnapping laws in the area of
custody jurisdiction. 21 2 The statute explicitly applies to situations
207. See infra note 222 and accompanying text.
208. RESTATEmENT, supra note 183, § 700 comment g. See also Ruffalo, 590 F. Supp.
at 714; cf. Katz, supra note 131, at 117.
Virtually every case grants actual damages up to all the costs of recovery. A
custodial parent who has suffered genuine emotional or mental anguish may
be awarded special damages. If the illegal detention of the child is flagrant,
or if the action clearly violates . . . state law, a court may award punitive
damages ....
Id. Under intentional infliction of emotional distress, the plaintiff may recover only damages
for "severe" emotional distress. See PROSSER AND KEETON, supra note 183, § 12.
209.
TENN. CODE ANN.
§§ 39-2-301, 303 (Supp. 1988).
210. Id. § 39-2-301(b)(4); see also id. § 39-2-303(a).
211. 28 U.S.C.A. § 1738A (West Supp. 1988). A detailed discussion of the PKPA is
beyond the scope of this Article. For a comprehensive presentation, see Note, The Parental
Kidnapping Prevention Act: Application and Interpretation, 23 J. FAM. L. 419 (1984).
212. Voninski v. Voninski, 661 S.W.2d 872 (Tenn. Ct. App. 1982) (holding that the
PKPA, under the supremacy clause, takes precedence over state law and must be consulted
first in determining jurisdiction in interstate child custody disputes).
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Best Interest on the Move
in which a noncustodial parent is denied visitation. 213 The PKPA
acknowledges the large number of disputes involving the right to
noncustodial visitation214 and includes the term "visitation" in the
definition of "custody determination.' '215 Because one purpose of
the PKPA is to encourage enforcement of custody and visitation
decrees, it is a useful tool for noncustodial parents seeking to recommence visitation. Although drastic, federal kidnapping charges
may be the most effective deterrent of custodial removal, primarily
because the penalties 2 6 are severe and because the "reach" of the
21 7
PKPA is national.
G. Summary
The preceding list of remedies, although not all-inclusive, 218 provides
an overview of the types of remedies available to parents whose
children have been improperly removed from the jurisdiction by
the custodian. Before requesting a remedy for wrongful removal
or interference with visitation, the noncustodial parent should consider several factors. First, he must decide which remedies are most
feasible. This determination will require an examination of statutes
and case law and a knowledge of the biases and preferences of the
trial judge. Some remedies, such as punitive modification, 2 9 may
not be viable options in Tennessee, and others, such as reduction
of alimony, 22 may be options that a particular judge will not consider. Second, the noncustodial parent should consider the effect
that the remedy will have on the child. To select a remedy that
213. See 28 U.S.C.A. § 1738A (West Supp. 1988).
214. Parental Kidnapping Prevention Act, Pub. L. No. 96-611, § 7(a)(1), 94 Stat. 3596
(1980) (recognizing that "there is a large and growing number of cases annually involving
disputes between persons claiming rights of custody and visitation of children"'.
215. 28 U.S.C.A. § 1738A(bX3) (West Supp. 1988).
216. The federal statute is merely an enforcement mechanism; thus, penalties are provided by state law. See, e.g., TENN. CODE ANN. § 39-2-301 (Supp. 1988) (providing a penalty
of five to fifteen years imprisonment for kidnapping children under 18).
217. 28 U.S.C.A. § 1738A (West Supp. 1988). This section is entitled "Full faith and
credit given to child custody determinations." See also Salisbury v. Salisbury, 657 S.W.2d
761 (Tenn. Ct. App. 1983) (stating that this section governs how full faith and credit must
be extended to child custody determinations).
218. Other remedies include an action for alienation of affections, see generally Annotation, Alienation of Child's Affections as Affecting Custody Award, 32 A.L.R.2d 1005
(1953), and a court order requiring that make up visitation be provided for the aggrieved
parent, see COLO. Rav. STAT. § 14-10-129.5(d) (1987).
219. See supra notes 164-79 and accompanying text.
220. See supra note 144.
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will harm the child emotionally may implicitly undermine the cause
of action.22 ' Third, the noncustodial parent must assess the impact,
or deterrent effect, that the remedy will have on the custodial parent. If the custodian can either ignore the court order or afford
to disobey it, a different, more severe remedy might be selected.
Finally, the noncustodial parent should evaluate the costs of pursuing the cause of action, his chances of succeeding on the merits,
and his likelihood of being made "whole." '
A careful consideration of these factors should allow the noncustodial parent to
select the most practical and effective cause of action.
V.
CONCLUSION
In today's mobile society custodial parents frequently desire to
move from the jurisdiction in which the noncustodial parent resides.
Custodial removal often sparks conflict, as the noncustodial parent
may fear that relocation will jeopardize his relationship with the
child. When the noncustodial parent challenges the move, or when
the divorce decree specifically prohibits removal, the custodian must
secure judicial authorization prior to removing the child from the
jurisdiction. If the custodial parent neglects to obtain this permission, she may be subject to penalty for wrongful removal. The
correct procedure requires the custodian to demonstrate, prior to
removal, that relocation will further the best interest of the child.
The best interest standard has been used ineffectively in Tennessee. Due to a lack of definition, structure, and analysis, Tennessee judges have failed to establish useful case precedent in
custodial removal cases. Instead of using the "best interest of the
child" as a goal to be achieved, the courts have used this term as
a substitute for a thorough evaluation of the facts. This misapplication of the best interest standard has led to vague, confusing,
and inconsistent opinions that do not treat the child's welfare as
paramount. As a first step toward correcting these problems, Tennessee courts should adopt both the economic-personal-environmental framework and the New York "exceptional circumstances"
test discussed in Part 11. By employing these approaches, Tennessee
221. See supra note 146 and accompanying text; see also supra text accompanying notes
164-217.
222. Being made "whole" involves restoring visitation rights and compensating the
parent for all costs and damages incurred.
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Best Interest on the Move
441
courts can improve the quality and efficacy of their child custody
and removal decisions.