Gene v. Aaby

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE FILED
April 22, 1996

GENE V. AABY, ) FOR Cecil Crowson, Jr.
PUBLICATION
Appellate C ourt Clerk
)
Plaintiff-Appellee, ) Filed: April 22, 1996
)
v. ) KNOX CHANCERY
)
JUDY E. AABY STRANGE ) Hon. Frederick D. McDonald,
) Chancellor
Defendant-Appellant. )
)
)
)
) No. 03S01-9507-CH-00073

For Plaintiff-Appellee: For Defendant-Appellant:

George F. Legg Sarah Y. Sheppeard
Becky H. Halsey William A. Mynatt
Stone & Hinds, P.C. Sheppeard & Swanson, P.C.
Knoxville, Tennessee Knoxville, Tennessee

OPINION

COURT OF APPEALS REVERSED. DROWOTA, J.
 In this child custody dispute, Judy E. Strange, the custodial parent, appeals

from the Court of Appeals’ affirmance of the trial court’s order denying her permission

to move out-of-state with her child. The sole issue for our determination is whether

the lower courts properly interpreted the principles enunciated in Taylor v. Taylor,

849 S.W.2d 319 (Tenn. 1993) in deciding this case. For the reasons set forth below,

we conclude that the lower courts did not do so; therefore, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

Judy E. Strange and Gene V. Aaby were divorced on June 6, 1990, by final

judgment entered in the Knox County Chancery Court. This judgment incorporated

a marital dissolution agreement, which, among other things, awarded custody of the

parties’ then-three year old son, Brandon, to the mother. The order granted the

father visitation on alternate weekends; it also provided for certain summer and

vacation visitation. The judgment contained no prohibition against the custodial

parent moving out-of-state with Brandon.

This dispute began in June 1992 when the father filed a petition requesting

that his child support obligation be decreased. The mother, in response, filed a

petition opposing the decrease. Her petition also included a “counterclaim,” in which

the mother requested permission to move with Brandon to Bardstown, Kentucky.

The mother’s stated reason for wishing to move was that she had remarried, and that

her new husband, Kendall Strange, had family in the Bardstown area. She also

stated that she had received a suitable offer of employment in Bardstown. The father

answered the counterclaim by asserting that a move to Kentucky would not be in the

2
best interests of the child; the father sought to have custody changed to him if the

mother took Brandon to Kentucky.

At the initial hearing in January 1993 on the custody issues, the mother

testified that she wished to move to Bardstown because of the reasons stated in her

petition. The father, on the other hand, offered expert psychological and psychiatric

proof which tended to show that removal would not be in Brandon’s best interests.

The experts based these conclusions, in part, on the relationships Brandon had

formed with his father and the father’s extended family. At the conclusion of the

proof, the trial court ruled that the mother had failed to prove that she should be

allowed to move to Kentucky with the child.

In March 1993 the mother then filed a motion to alter or amend the judgment,

arguing that the ruling violated the principles set forth in Taylor, supra, which had just

been released by this Court. The trial court agreed to reopen the proof, and after

hearing additional evidence and considering the case in light of Taylor, ruled that the

mother would be allowed to move to Kentucky. The November 1993 memorandum

opinion issued by the trial court provides, in part, that:

The mother’s fundamental reason for wanting to move from Knoxville
to Bardstown is her desire to locate in a smaller community, which she
believes will provide a better place in which to live. The testimony is
convincing that the mother herself will feel much better living in a
smaller community than Knoxville. She grew up in a smaller
community. She believes a smaller community will be a better place
to raise Brandon. It cannot be found that her desire to move is wrong,
notwithstanding testimony that it will have some disruptive effect on the
boy. Indeed, under Taylor the effect on the child is generally to be
given lesser consideration. In any event there is testimony that
Brandon will be able to adjust to the move.

3
 In the absence of convincing evidence that the child will be harmed the
Court should be very hesitant to substitute its opinion for the mother’s
decision, which is one of the many a custodial parent must make that
will affect a child. Bardstown has a good school system, and her
present husband has relatives there. While the move is not made in
order for either the mother or her present husband to improve their
employment opportunities, it appears that they will have reasonable
opportunities for employment there ... The mother has expressed a
valid reason for moving, although her reason may well be viewed by
others as insufficient. It also appears that in a moment of anger the
mother spoke [to Brandon’s teacher] of taking Brandon to Kentucky
without allowing the father to see Brandon again. It is not concluded,
however, that the mother’s motivation for the move is to deny or deter
the father’s visitation. It is accordingly concluded from the evidence
and in light of Taylor ... that the mother should be, and accordingly is,
granted permission to take Brandon to Bardstown.

The trial court also ordered a revised visitation schedule, in which the father was

granted additional summer and vacation visitation. Finally, the trial court denied the

father’s petition for a change of custody based on the proposed move.

In December 1993 the father filed a motion to alter or amend, arguing that the

November 1993 judgment conflicted with an unpublished opinion of the Eastern

Section of the Court of Appeals that had just been released. After reviewing its

decision in light of this opinion, the trial court reverted to its original determination,

holding that the mother had not proven that the move would be in Brandon’s best

interest. The mother resigned from her new job in Kentucky and moved back to

Knoxville after learning of the ruling.

The mother appealed from this decision to the Court of Appeals, which

affirmed the decision. After the Court of Appeals’ decision was handed down, the

mother and Kendall Strange separated; and she has since filed for divorce. Because

4
the trial court’s vacillating course of action in this case obviously indicates the

presence of confusion in the law of removal, we granted the mother’s application for

permission to appeal for the purpose of clarifying this law.

BACKGROUND OF THE LAW OF REMOVAL

A. Pre-Taylor law

In the not too distant past, Tennessee law conferred upon the custodial parent

sole responsibility for making decisions regarding the place of the child’s residence.

For example, in Thomas v. Thomas, 206 Tenn. 584, 335 S.W.2d 827 (1960), the

non-custodial parent, the father, requested that he be relieved of his duty to provide

child support because the mother had deprived him of his visitation rights by

remarrying and moving to Texas with the children. We rejected that argument,

holding that “the mother had the right to control the child’s whereabouts and the

father had no voice where the child should reside and could not make his duty to

support the child depend upon the place of the child’s abode.” Thomas, 335 S.W.2d

at 828. We further stated that “the mere fact that the decree grants the other parent

the right of visitation does not implicitly prohibit the removal of the child from the

jurisdiction.” Id. See also Evans v. Evans, 125 Tenn. 112, 140 S.W.745, 746 (1911)

(“The custody of this child was entrusted to her mother. [The father] has no voice as

to where she shall reside; but, by decree of the court, the mother is made the arbiter

of such matters.”)

Subsequently, however, Tennessee courts began moving away from the

5
position that the non-custodial parent had no say whatsoever in the removal decision.

Instead, the Court of Appeals twice held that if the non-custodial parent wished to

prevent the move, he or she would be required to prove that removal would not be

in the “best interests of the child.” See Arnold v. Gouvista, 735 S.W.2d 458, 463

(Tenn. App. 1987) (custodial parent may not be held in contempt of court for leaving

the state with child if divorce decree contains no provision prohibiting movement;

burden rests upon non-custodial parent to prove that move is not in the best interests

of the child); Walker v. Walker, 656 S.W.2d 11 (Tenn. Ct. App. 1983) (where divorce

decree prohibits custodial parent from removing the child from state, that parent

bears burden of proving that move is in best interests of the child; however, where

divorce decree contains no such provision, burden is on noncustodial parent seeking

to prevent the move).

These rules granting the custodial parent substantial autonomy of movement

were, however, undermined in 1988 by this Court in Seessel v. Seessel, 748 S.W.2d

422 (Tenn. 1988). In that case, the custodial parent filed a petition to remove the

child to Colorado; and the non-custodial parent filed a counter-petition seeking a

change of custody. Although there was apparently no provision in the divorce decree

prohibiting removal, the trial court nevertheless ruled that the custodial parent had

failed to prove that the move was in the child’s best interest. The Court of Appeals,

citing Walker, reversed that judgment, holding that the non-custodial parent had not

adduced any evidence that the move would be adverse to the child’s best interests.

We reversed the judgment of the Court of Appeals. In so doing, we quoted the

following treatise passage with approval:

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 A court which grants a divorce or separation may expressly authorize
the removal of a minor child from the jurisdiction. Similarly, the court
has the power to award custody ... to one who contemplates an
immediate removal of the child from the jurisdiction .... It has
accordingly been stated that it is against the policy of the law to permit
the removal of a minor child from the state unless the applicant shows
that the best interests of the child will be better served by its removal.

The question whether the court shall permit or prohibit the removal of
the child rests within its sound judicial discretion. The general rule that
in matters affecting the custody of a child the court will be governed
primarily by the welfare and best interests of the child applies in
determining whether to permit or prohibit removal of the child from the
jurisdiction.

Seessel, 748 S.W.2d at 424, quoting 24 Am. Jur. 2d, Divorce and Separation, § 798

(1966). We also stated that generally the party filing a petition with the court bears

the burden of proof on that petition; and we concluded that because the custodial

parent had filed a petition seeking permission for removal, the burden rested upon

her to prove that removal was in the child’s best interests.

Because it required the custodial parent to establish that the move would

benefit the child,1 Seessel represented a substantial curtailment of the traditional

legal freedom afforded the custodial parent to make decisions as to the child’s

residence. Nor was the burden of proof issue the only way in which Seessel served

1

We did not hold, however, that the custodial parent always had the burden of
proving that the move would be in the best interests of the child if the divorce
decree was silent on removal. Rather, we held that the custodial parent would
bear the burden of proof only if he or she filed a petition seeking permission to
move. See Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn. 1990) (Court of
Appeals erred in concluding that the custodial parent failed to prove that removal
was in children’s best interests because custodial parent did not file a petition
seeking to move). Thus, we left open the question of whether the custodial parent
was required to seek a court’s permission for removal at all if the decree was
silent on the issue.

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to limit this freedom. By explicitly endorsing the use of the best interests of the child

standard in removal cases -- a first for this Court -- and declining to set forth any

specific principles for determining the best interests, we conferred enormous

discretion upon trial courts in deciding the removal issue. Indeed, we recognized the

open-endedness of the best interests test in Rogero v. Pitt, 759 S.W.2d 109, 112

(Tenn. 1988), where we stated:

There are few legal formulae or invariable principles to guide the courts
in decisions of this nature. Such decisions are primarily factual, not
legal. Attempts to reduce to legal doctrine the resolution of cases such
as this usually have little significance. The best interests of the children
under all the circumstances, which, of course, include their
relationships with their parents, must be the concern of the courts.

B. Taylor v. Taylor

It was not long before the approach taken in Seessel, Rogero, and Nichols v.

Nichols, 792 S.W.2d 713 (Tenn. 1990), began to cause problems. In 1993 we noted

that “although there was little or no litigation in this area of domestic relations prior to

our opinion in Seessel, the trial and intermediate courts have experienced a

significant increase in the number of removal cases filed since Seessel was

announced.” Taylor, 849 S.W.2d at 326. Therefore, when presented with the

opportunity in Taylor to establish some concrete standards to guide the courts in

determining the best interest of the child, we attempted to provide such guidance.

In that case, Deborah and Steve Taylor became divorced in May 1989; the

divorce decree provided that the mother was to have custody of their daughter

Brittney, and the father was granted visitation rights.

8
 There was nothing in the divorce decree that prohibited the mother from

removing the child from the state. Nevertheless, several months later the mother

filed a petition requesting the court to “modify visitation” so that she and Brittney

could move from Memphis to Montana. The mother planned to live with her parents

and attend school in that state. The trial court denied this request.

Several months later Ms. Taylor remarried and made plans to move to

Davenport, Iowa, where her new husband was enrolled in school. The new husband,

Mark Mitten, had established a good relationship with Brittney during previous visits

to Memphis, and Ms. Taylor had secured suitable employment in Iowa.

Furthermore, the couple had rented an apartment in Davenport, and had made day-

care arrangements for Brittney. Although the parties attempted to work out a revised

visitation schedule among themselves, the father ultimately refused to allow Brittney

to be taken to Iowa.

Subsequently the mother filed a petition requesting that the trial court modify

its previous order and allow her to move to Davenport with Brittney. Although the

mother denied any intent to defeat the father’s visitation rights, and expressed a

willingness to allow greater summer and vacation visitation to compensate for the

lessened regular visitation that the move would entail, the trial court denied

permission to move. The trial court found that the move was not in the best interests

of Brittney because she had considerable extended family in the Memphis area, with

which she had frequent contact. The Court of Appeals affirmed this judgment, and

we granted the mother’s application for permission to appeal.

9
 We began our analysis by criticizing the open-endedness of the best interests

standard generally, stating that “the absence of standards for its determination

threatens to render the concept of ‘best interest’ so vague that it defies analysis,

invites decision by guesswork, and evades any sort of meaningful review on appeal.”

Taylor, 849 S.W.2d at 326. W e then narrowed our focus, noting that the best

interests determination in the removal context is not equivalent to the original custody

decision and that, therefore, relocation would not, standing alone, constitute a basis

for a change of custody. We stated:

These cases, and others like them, reflect the collective wisdom of both
the courts and child psychologists that children, especially those
subjected to the trauma of divorce, need stability and continuity in
relationships most of all. This recognition had led to a strong
presumption in favor of continuity of placement, which is reflected in the
well-established rule that courts will not entertain petitions for change
of custody unless there has been some change in circumstances that
has rendered the custodial parent unfit or has exposed the child to
some form of risk.

Id. at 328.

We next turned to the best interests determination itself. After surveying the

law of other jurisdictions, we determined that the custodial parent’s happiness and

well-being are crucial to the child’s interests because the custodial parent has the

responsibility of caring for the child on a daily basis. Therefore, we stated, “the child’s

best interests are fundamentally interrelated with those of the custodial parent,” id.,

and the removal decision should be made with this in mind.

We concluded our discussion of the best interests determination by making

two observations: (1) that while non-custodial parents have the right to maintain their

10
relationships with their children, visitation is nevertheless a flexible arrangement that

may be altered; and (2) that because the non-custodial parent’s freedom of

movement is not limited by custody considerations, fairness demands that the

custodial parent have a commensurate amount of freedom, even though this may

require revision of the visitation schedule. We summarized our discussion by

enunciating the following list of factors to be considered in the removal decision:

The factors to be considered in a removal dispute ... include (but are
not limited to) a recognition that in removal cases, the question of
custody is not subject to de novo review, unless the petition cites
reasons other than removal as grounds for custody; that there is a
strong presumption in favor of continuity of the original custody award;
that the welfare of the child is affected by the welfare of the custodial
parent, and that the best interest of the child must be reviewed in order
to determine the advantages of the move to the child; that removal of
the child from the jurisdiction may require rescheduling of the non-
custodial parent’s visitation, but that removal is not, in and of itself, a
change of circumstance sufficient to justify modification of the custody
order; that the courts must be sensitive to the non-custodial parent’s
efforts to maintain his or her relationship with the children, and that
visitation should be arranged in a manner most likely to enhance that
relationship; and finally, that the motives of the custodial parent in
making the move must appear to be valid, that is, not intended to
defeat or deter visitation by the non-custodial parent. These factors,
and any related circumstances found by the court to be significant in a
given situation, must be weighed individually and collectively.

Id. at 332.

We also addressed the procedural aspects of the removal petition, and

concluded as follows:

If there is no outstanding order restricting movement of the child or
children, and the parties can agree to a revised visitation schedule, the
custodial parent is free to move without seeking further court
authorization. Likewise, if the non-custodial parent consents to the
removal and the parties can agree on a revised visitation arrangement,

11
 a prior order of restriction may be modified by agreement on motion to
the court having jurisdiction of that order and subject to the approval of
that court.

If agreement cannot be reached, under the procedural rule announced
in Seessel and Nichols, the burden of proof falls on the party seeking
relief. In order to discharge that burden, the non-custodial parent who
seeks to prevent removal must show by a preponderance of the
evidence that removal is adverse to the best interest of the child or
children involved. If, on the other hand, the custodial parent files for
relief, seeking to lift a prior prohibition on removal or asking the court’s
permission to move from the jurisdiction, or both, the custodial parent
has the burden of proving that removal is in the child’s best interest.
That burden can be shifted by a prima facie showing of a sincere,
good-faith reason for the move and a prima facie showing that the
move is consistent with the child’s best interest.

Id.

Finally, we applied these rules to that case and reversed the judgment. We

explained that:

[The custodial parent] has shown that removal is warranted in this
case, based on a well-established reason for the move -- her
remarriage to someone who was living, for an equally good reason,
some distance from Memphis. There is no suggestion in the record
that Deborah Mitten is anything other than a wholly fit person to have
custody of Brittney -- indeed, the trial court has now made that finding
on three separate occasions. There is no showing that the move will
have adverse consequences to Brittney’s health or well-being. In fact,
the record reflects that the Mittens have gone out of their way to make
the move from Memphis to Davenport a smooth one for Brittney,
attempting in every way to reduce the impact of the transition on her
and looking at all times to her welfare.

It is obvious that the previously established schedule of visitation will
have to be altered. There is no proof that this cannot be successfully
accomplished to accommodate the interests of both parents, as well as
the child’s interest. There is nothing in the record to indicate that
Deborah Mitten’s conduct has been vindictive or that in proposing to
move to Davenport, she intended to deprive Steve Taylor of his
visitation rights or to interfere with his close relationship with his child.

Taylor, 849 S.W.2d at 333-34.

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 APPLICATION OF THE LAW OF REMOVAL

The parties here construe Taylor in very different ways. The mother insists

that the case is a complete recasting of Tennessee’s law of removal because the

Taylor court accepted the proposition that the interests of the child and the custodial

parent are fundamentally bound up with one another -- a proposition which, she

says, is inherently at odds with the traditional best interests test. The mother urges

that under Taylor the court should not judge the wisdom of the custodial parent’s

decision to relocate. Rather, she states, the proper inquiry is limited to determining

whether the custodial parent's motives for moving are “valid, that is, not intended to

deter or defeat visitation by the non-custodial parent.” Taylor, 849 S.W.2d at 332.

Because the lower courts correctly found that she was not attempting to defeat or

deter the father’s visitation rights by wishing to move, the mother argues, she should

be allowed to relocate with Brandon.

The father argues, on the other hand, that Taylor did not change the traditional

best interests test, but simply sought to make it clear that the well-being of the

custodial parent is to be considered by the courts in reviewing these disputes. He

cites as support for this assertion the fact that we stated that “the best interest of the

child must be reviewed in order to determine the advantages of the move to the

child." Id. at 332. He also relies upon our statement that “much of what we held in

the Seessel-Rogero-Nichols trilogy remains good law in Tennessee.” Id. at 331.

Because Taylor merely revised the best interests standard, he concludes, the lower

courts were correct in considering all the circumstances and determining that

13
Brandon’s best interests would not be served by moving.

The ultimate message to be gleaned from Taylor is admittedly obscure. This

is evidenced by the fact that both of these arguments find support in the text of the

opinion, and by the trial court’s obvious confusion as to its meaning. Because we

have failed to “make determinate an area of law that has become increasingly

unsettled,” id. at 326, we must dispel the ambiguity of Taylor and clarify its impact

on the law of removal.

Although it drew upon authority from many other jurisdictions and dealt with

a number of specific sub-issues, Taylor was fundamentally concerned with furthering

two overarching goals in the law of removal: (1) “limiting judicial intervention in post-

divorce family decision-making, and (2) making disputes easier of resolution if they

must be litigated.” Id. at 331 (emphasis added). We continue to believe that these

goals must determine the law. Moreover, we believe that the traditional best interests

of the child test, for the reasons enunciated in Taylor, makes these goals difficult or

impossible to achieve. And we are convinced, again for the reasons stated in Taylor,

that the interests of the custodial parent and the interests of the child are basically

interrelated, even if they are not always precisely the same. Therefore, we conclude,

as the mother insists, that a custodial parent will be allowed to remove the child from

the jurisdiction unless the non-custodial parent can show, by a preponderance of the

evidence, that the custodial parent’s motives for moving are vindictive -- that is,

intended to defeat or deter the visitation rights of the non-custodial parent.

This conclusion does not mean, however, that a non-custodial parent’s hands

14
 are tied where removal could pose a specific, serious threat of harm to the child. In

these situations,2 the non-custodial parent may file a petition for change of custody

based on a material change of circumstances. The petition would state, in effect, that

the proposed move evidences such bad judgment and is so potentially harmful to the

child that custody should be changed to the petitioner. Because Tennessee law

allows custody to be changed if the behavior of the custodial parent clearly posits a

danger to the physical, mental or emotional well-being of the child, Musselman v.

Acuff, 826 S.W.2d 920 (Tenn. App. 1991), such a petition would not violate Taylor --

which only prohibits a change of custody based solely on the fact of the move.

However, expert psychological and/or psychiatric testimony that removal could be

generally detrimental to the child will usually not suffice to establish an injury that is

specific and serious enough to justify a change of custody. A move in any child’s

life, whether he or she is raised in the context of a one or two parent home, carries

with it the potential of disruption; such common phenomena -- both the fact of moving

and the accompanying distress -- cannot constitute a basis for the drastic measure

of a change of custody.

With regard to procedure, we conclude that if the parties cannot agree on an

acceptable visitation schedule, the custodial parent seeking to remove must file a

petition with the court to reapprove or revise, as the case may require, the existing

2

Situations that could pose a “specific, serious threat of harm” to the child are, for
example, if the parent wished to take a child with a serious medical problem to an
area where no adequate treatment was readily available; if the parent wished to
take a child with special educational requirements to an area with no acceptable
educational facilities; or if the parent wished to move and take up residence with
a person with a confirmed history of child abuse. This list is merely intended as
illustrative; it does not purport to be an exhaustive list of situations that would
qualify.

15
 visitation schedule.3 In the hearing on the petition, the non-custodial parent may, if

he or she wishes, present evidence that the custodial parent’s motives for moving are

vindictive; also, any petition for a change of custody based on the above-discussed

grounds shall be heard at this time. If the non-custodial parent does not wish to raise

either of these issues, the sole issue at the hearing shall be the revision of the

visitation schedule. As is the case in the initial proceedings, neither party shall bear

the burden of proof on the visitation issue; rather, the trial court shall, in its sound

discretion, fashion an acceptable revised visitation arrangement.4 Any prior law

inconsistent with these conclusions is expressly overruled.

In this case, the trial court expressly found that the mother’s motive for moving

was not vindictive. We find that the record supports this conclusion. Furthermore,

although the father presented psychological and psychiatric evidence that Brandon

could be harmed by the move, we find that this evidence does not illustrate a harm

that is specific and serious enough to justify a change of custody.

3

If the court finds that the proposed move is of such a limited physical distance that
a revision is unnecessary, it may simply reapprove the existing schedule.
Otherwise, the trial court will need to fashion a revised schedule. Of course, if the
parties can agree to a visitation schedule, then there is no need for the custodial
parent to file a petition at all.
4

The visitation issue in the initial proceedings is controlled by Tenn. Code Ann. §
36-6-301, which provides, in part, as follows:

After making an award of custody, the court shall,
upon request of the non-custodial parent, grant such
rights of visitation as will enable the child and the non-
custodial parent to maintain a parent-child relationship
unless the court finds, after a hearing, that visitation is
likely to endanger the child’s physical or emotional
health ...

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 For the foregoing reasons, the judgment of the Court of Appeals is reversed.

_______________________________________
FRANK F. DROWOTA III
JUSTICE

Concur:

Anderson, C. J.
Reid, Birch, JJ.

White, J. - Dissenting - see separate dissenting opinion.

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