                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  February 15, 2006 Session

                               VANESSA ANN WEBSTER
                                        v.
                               BRAD ANTHONY WEBSTER

                  An Appeal from the Chancery Court for Madison County
                       No. 61264    W. Michael Maloan, Chancellor



                   No. W2005-01288-COA-R3-CV - Filed October 24, 2006


This is a parental relocation case. The parties were divorced and, under their MDA, the mother was
designated the primary residential parent for the parties’ two children. Within a month after the
divorce decree was entered, the mother wrote the father a letter saying that she was moving to
Canada with the children. The father filed an objection to the relocation in the trial court. The
mother filed a response and a petition to relocate with the children to Canada, stating that she
intended to marry a citizen of Canada who was currently serving in the Canadian armed services.
After a hearing, the trial court denied the mother’s petition, finding that the relocation did not have
a reasonable purpose and that the relocation was not in the children’s best interest. The mother now
appeals. We reverse, holding that the evidence preponderates against the trial court’s finding of no
reasonable purpose under the parental relocation statute.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is
                                Reversed and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

David W. Camp and Bob C. Hooper, Jackson, Tennessee, for the appellant, Vanessa Ann Webster.

Barbara Hobock and Cynthia Chandler-Snell, Humboldt, Tennessee, for the appellee, Brad Anthony
Webster.


                                             OPINION

      Plaintiff/Appellant Vanessa Ann Webster (“Mother”) and Defendant/Appellee Brad Anthony
Webster (“Father”) were married in August 1997. They had two children during the marriage,
Savannah Lee Webster (born January 26, 1998) and Virginia Lynn Webster (born November 26,
1999). At all pertinent times, the parties and the children lived in or near Jackson, Tennessee.

        In August 2003, Mother filed a petition for divorce and the parties separated. On December
3, 2003, the parties executed a permanent parenting plan which designated Mother as the primary
residential parent and provided that Father would have parenting time every other weekend and on
alternating Wednesdays. On December 4, 2003, the parties executed a marital dissolution agreement
(“MDA”), which set out the remaining terms of the parties’ divorce. On December 23, 2003, the
trial court entered a final decree of divorce, incorporating by reference the parties’ MDA and
permanent parenting plan.

         In October 2003, Mother met Captain Daniel Belanger (“Belanger”), a fighter pilot for the
Canadian Air Force, when he came to Jackson for an air show. On January 15, 2004, less than a
month after the divorce was made final, Mother sent Father a letter informing him that she was
“moving to Canada with the girls.” She stated no reason for the move, except that it was “in the best
interest of the girls.” She said that she hoped to work out an arrangement with Father without using
lawyers. In the letter, Mother suggested that Father have custody of the girls for eight weeks in the
summer, two weeks at Christmas, and one week during spring break, which would enable Father to
spend more days with the children than under the agreed-upon parenting plan. In this way, Mother
stated, the children could have a more stable home environment without the weekly “back-and-forth
living.” In addition, they could be exposed to a different culture in Canada and could learn to speak
French. She asked for Father’s cooperation for the benefit of the girls, because her move was going
to “happen no matter what.”

         Not surprisingly, Father objected. On January 26, 2004, Father filed a petition opposing
Mother’s proposed relocation of the children. In his petition, Father pointed out that Mother’s letter
failed to state the location of her proposed new residence or the reason for the proposed relocation,
and also failed to notify him of his right to file opposition to the move within thirty (30) days of her
letter, all of which was required by statute. See T.C.A. § 36-6-108(a) (2005). In his petition, Father
surmised that Mother’s reason for moving to Canada was to be with a man she had recently met.
Father asserted that Mother’s proposed move did not have a reasonable purpose, that it would pose
a threat of specific, serious harm and result in severe emotional detriment to the children, and that
it was not in the children’s best interest. In the event that the trial court found that moving to Canada
with Mother was not in the best interest of the children, Father asked the court to designate him as
primary residential parent and grant Mother reasonable visitation.

        Several months later, on May 7, 2004, Mother sent Father another letter informing him that
she intended to marry and move with the children to Canada. On August 27, 2004, Mother filed a
response to Father’s opposition to her proposed relocation and a counter-petition to modify the final
decree of divorce. Mother stated that she intended to marry a citizen of Canada who was currently
serving in the Canadian armed services, and she requested that the permanent parenting plan be
modified to allow her to relocate with the children.



                                                  -2-
        In August 2004, Chancellor J. Steven Stafford appointed Carl E. Seely as the guardian ad
litem for the children. Subsequently, of his own volition, Chancellor Stafford recused himself, and
Chancellor W. Michael Maloan was assigned the case.

        On December 22, 2004, a hearing was held on Mother’s proposed relocation. The trial court
heard testimony from the parties and from Mother’s fiancé, Daniel Belanger, and some of the parties’
family members.

        Belanger testified at the outset. He said that he is a Captain with the Canadian Armed Forces,
and had served as a fighter pilot with the Canadian Forces since 1988, living in Quebec, a French-
speaking city in Canada. Belanger said that he would have enough time in the Canadian Armed
Forces to retire in approximately two and a half years, but he planned to stay in the armed forces for
about seventeen more years. He testified that he could not move to Tennessee because, if he did, he
would lose his job with the Canadian Armed Forces. He said that he had recently taken a desk job
with the Canadian Armed Forces in order to be home more. Belanger said that he is generally
subject to being transferred, but would not be transferred in the next three years and, after that, could
simply retire if presented with a proposed transfer that was unacceptable.

        Belanger testified that he met Mother at an air show in Jackson in October 2003, at a time
when she was separated from Father and Belanger had separated from his wife. Belanger’s divorce
from his wife was final in November 2003. He and Mother started talking about marriage in January
2004 but had not set a date for the wedding because they were waiting for resolution of Mother’s
petition to relocate. Belanger said that he anticipated that he and Mother would marry before she
and the children relocated to Canada.

        Belanger has two daughters of his own, ages five (5) and nine (9), at the time of the hearing.
Belanger’s daughters lived primarily with their mother, about eight miles from Belanger, but he said
that he has residential parenting time with them between 40% and 50% of the time. One daughter
is bilingual, able to speak English and French, and the other speaks only French. He said that
Mother’s children, who were five and six years old at the time of the hearing, had visited Canada
twice. Belanger’s daughters were present during both of their visits, and the children all interacted
well.

        Belanger testified that, if the children were allowed to relocate to Canada, they would obtain
dual citizenship and learn to speak French. Initially Mother and the girls would live with Belanger
on the military base in his three-bedroom house. He said that Quebec is French-speaking but the
military base is bilingual. The children would have the choice of going to either a nearby French
school or an English school about five miles away from the military base. He noted that health care
in Canada is free, and said that schools and colleges were comparable to those in the United States.
Belanger said that, if the Mother and the girls lived in Canada and an emergency arose that prevented
Mother from caring for the children, he would accept the responsibility for caring for Mother’s
daughters.



                                                  -3-
        Belanger testified that, if Mother’s children were allowed to relocate to Canada, Father could
have visitation with his children “[a]s often as he wants.” He emphasized that “the last thing in our
mind [was] to deprive the children from their father.” Belanger said that, in order to help the
children communicate with Father, he would “make everything available technically . . . with e-
mails, telephone, travel arrangements, everything possible to make it happen.”

        Mother testified as well. Prior to the hearing, Mother had a job with the Jackson Chamber
of Commerce earning $42,000 per year, but she quit that job in July 2004 to spend time with her
children and to await the outcome of her request to relocate. At the time of the hearing, she was
writing a children’s book and doing freelance graphic design work on the computer designing logos.
She and the children were living off of the child support from Father and proceeds from the sale of
her home.

        Mother married Father when she was twenty-three. She admitted that she and Father
divorced after she had an affair with someone else. In August 2003, after Mother filed for divorce,
Father reluctantly moved out of the marital home.

        Mother admitted that, when she and Father negotiated their permanent parenting plan, in
response to his questions, she assured him that she would not try to move with the children to Texas,
where her family was located. At that time, Mother testified, she did not anticipate that she would
want to move to Canada. By January 2004, however, she had met Belanger and told Father that she
wanted to move to Canada with the girls. As background, Mother said that her parents divorced
when she was five, and she moved with her mother to Texas to be near her mother’s family. Mother
spent time with her father during the summers and on Christmas holidays. Mother said that, as a
child, she enjoyed this arrangement and believed it was better for her than the standard every-other-
weekend visitation, because she had longer periods of time with her father.

         In February 2004, Mother testified, she spent about four weeks in Canada investigating
relocating there, while Father stayed with the children in Mother’s apartment in Jackson.1 Mother
concluded that Canada “would be a very wonderful place for the three of us to live.” The results of
Mother’s investigation were compiled in a notebook that Mother used in her testimony. Mother
testified that her investigation of the Canadian school system indicated that it is much like the school
system in the United States. The parties’ children would be in an English school and would be
taught French as a second language. Father’s medical insurance would be accepted in the Canadian
health system, and after residency has been established for six months, health care is free. Mother
determined what the children would need on trips between the United States and Canada, such as
passports and parental consent letters. She did not anticipate any problems with the children’s travel.

       In April 2004, Mother took the girls to Canada to visit with Belanger. She did not inform
Father of the trip until she and the girls were already in Canada, because the trip did not interfere


         1
         Mother testified that Father was living in a hotel at the time, so she offered to let him stay with the girls in her
apartment, and he agreed.

                                                            -4-
with his regularly-scheduled parenting time. In May 2004, Mother sent Father another letter telling
him that she intended to marry Belanger and describing the type of place in Canada in which she and
the children would be living. She asked Father to work with her to plan a mutually agreeable
visitation schedule. Mother said that, at the time, she had not told the children that she intended to
marry Belanger and move to Canada. However, the girls’ paternal grandmother, Alice Williams
(“Williams”), told the girls about Mother’s impending marriage, told them that Canada was far away,
and that, if they moved there, they would never see their cousins again.

        Mother asserted that she had thoroughly investigated every aspect of the proposed move to
Canada, considering the children’s well-being and safety, and had determined that living in Canada
would be beneficial for the girls. She submitted into evidence several photographs showing facilities
in Quebec, such as the children’s proposed school, a ballet academy, the military base where they
would live, a hospital, and a hotel where Father could stay when he visited, as well as photographs
of Belanger, Mother, and their four children on vacation in Canada. Mother said that, if relocation
to Canada were permitted, Father could visit the children whenever he wanted to see them. Under
the parenting schedule she was proposing to the trial court, Father would have the children one week
in April, one week at Christmas (odd years) or Easter (even years), and four weeks in the summer.
Mother said that she would be willing to make all of the travel arrangements, finding the cheapest
airfare for everyone.

        Initially, Mother testified that she intended to try to find a full-time job in Canada that offered
benefits. In her later testimony, she said that, if permitted to relocate, she envisioned being home
with Virginia and Belanger’s younger daughter, who are the same age, and going to lunch with
Savannah, who would have an hour and a half for lunch at school.

        Mother was questioned about the children’s relationship with their extended family.
Apparently the paternal grandmother, Williams, babysat with the children fairly often, usually a few
hours at night, sometimes overnight. She said that their paternal grandfather, Don Webster
(“Webster”), lives in Kentucky and rarely sees the children. Father’s sister, Leslie Cook (“Cook”),
was only minimally involved with the children while the parties were married. Mother testified that
her mother, Jan Meadows (“Meadows”), lives in Jackson, Tennessee; Mother takes the children to
see Meadows about once each week, but she rarely babysits them. Mother’s father, Ed Parker
(“Parker”), works half of the year in Jamaica and sees the children approximately once a month.
Mother’s sister, Jennifer Hughes (“Hughes”), lives in Jackson, Tennessee, and has two sons, with
whom the parties’ daughters were well acquainted. Generally, Mother testified, the children were
loved by their extended family, but it was rare for her to call on extended family for help with the
children. If she needed help with the children in Canada, Mother said, she would rely on Belanger,
his nearby family members, and the family network at the military base. Mother said that, if
permitted to move, she would keep the children connected with their extended family by telephone,
e-mail, and webcam visits.

        Mother stated that the primary reason she wanted to move to Canada was to marry Belanger
and to have her children benefit from that loving home. She said it was not feasible for Belanger to


                                                   -5-
move to Tennessee, because he would lose his full pension. Mother was asked whether this was
simply an adventure based on her self-described “fascination” with Canada. Mother denied this,
stating that she wanted to move there to be with the man she wanted to marry and to have her
children with her in a loving home.

       Mother stated decisively that, if the trial court denied her request to relocate with the
children, she would stay in Tennessee and “try to find a way to be with Daniel [Belanger].”

       Father also testified. At the time of the hearing, he was employed as a vice president and
commercial loan officer at Bancorp South and had been there for six years. He said that his hours
were flexible, and that he was able to take care of the children during his parenting time.

         Father testified that, prior to the divorce, he was very active in the children’s lives. He said
that he helped them get dressed in the morning, prepared their breakfast, got up with them when they
cried at night, and prepared dinner when he came home from work. He claimed that he frequently
took them to doctor appointments because he was able to leave work more easily than Mother. His
mother, Williams, stayed with the parties when each daughter was born, and after that she babysat
the children on occasion. Father took the girls to see his father in Kentucky at least once a month.
Father’s sister, Cook, has a child Savannah’s age, and he said that he and the girls spend time with
his sister’s family when he has parenting time. Father said that he had remained close to Mother’s
family, particularly Mother’s sister, Hughes, and their two children.

        Father noted that, during the divorce negotiations, he and Mother specifically discussed his
desire that Mother not move away with the children. Mother’s job with the Jackson Chamber of
Commerce gave her the opportunity to explore larger job markets, and she had expressed interest in
moving to a bigger city. Therefore, at the time, he suspected that Mother might seek to move to
Texas or to a larger city. Father claimed that Mother assured him she would never move away from
Jackson. Father’s family encouraged him to get Mother’s promise to stay in Jackson in writing, but
he did not do so because he did not think it was necessary. Nevertheless, Father said he was not
surprised to receive Mother’s letter telling him that she was moving with the children to Canada,
because Mother had made “several bad, huge . . . choices that impacted our . . . family . . . .”

        Father claimed that he was supportive of Mother’s relationship with Belanger, and noted that
he always kept the children during Mother’s trips to Canada. Father said that he did not want the
children to move to Canada with Mother because they would be fifteen hundred miles away from
him and all of their other family members. He felt that the children would suffer emotional harm
from having no family with them in Canada, and also because traveling to and from Canada is
difficult. He observed that international travel can be complicated, noting an occasion on which he
kept the children for Mother an extra night because Belanger’s flight was canceled at the last minute
and he had to stay another day. Father asserted that, if Mother wished to continue her relationship
with Belanger, they could travel to see one another without involving the children and he would
agree to keep the girls during their trips. Father feared that the distance would cause him to grow
apart from his children and that he would not be informed of issues that impacted them. He did not


                                                  -6-
think that he and the girls could maintain their relationship over the internet or through a webcam.
Father maintained that Mother’s purpose in relocating the children to Canada was unreasonable
because “it’s unreasonable for somebody to meet somebody and the next month decide to move them
and their children away from the rest of their family to another country.” Father testified that, if
Mother moved to Canada, he would be willing to become the children’s primary residential parent.

       Family members of the parties testified as well. Williams, Father’s mother, stated that she
had helped with the children often, and she considers herself to be a part of their support group. She
was opposed to the move and believed that the children would suffer emotional harm from being
denied time with their grandparents. Jan Meadows, Mother’s mother, testified that she sees the
children often, but did not feel that the children’s move to Canada posed any risk of harm to them.

        The guardian ad litem, Carl Seely, questioned the witnesses but did not testify at trial. His
report, based on conversations with the children, was not introduced into evidence. He offered a
closing argument on behalf of the children at the conclusion of the testimony, however, as did the
parties’ attorneys. In Seely’s closing argument, he noted that the parties’ daughters had indicated
that they loved both of their parents but preferred to continue to live with Mother. He found no
indication that Mother’s desire to move stemmed from a desire to undermine Father’s parental rights.
Rather, it appeared to be based totally on her romantic relationship with Belanger. Seely said that
he had had serious questions about whether Mother’s purpose was reasonable, considering how
quickly after meeting Belanger she decided to marry him and move the children to Canada. He
stated:

       . . .[Q]uite honestly, if the issue [had] come up back in January [2004] I would have
       said, “No, it’s not reasonable.” . . . [Now in December 2004] I am going to have to
       come down on the side of relocation largely because we had a much more extended
       time . . . to find out whether this relationship will endure, and it seems to have.

Therefore, based on these considerations, Seely advocated granting Mother’s petition to relocate.

         At the conclusion of the hearing, the trial court denied Mother’s relocation request. The trial
court found that Canada had an adequate functioning legal system and would enforce Father’s
visitation rights, that Mother was neither emotionally disturbed nor dependent, and that the reason
for her proposed relocation was not vindictive. Furthermore, the trial court determined that there
was no threat of specific or serious harm to the children if relocation to Canada were permitted. The
trial court’s principal concern, however, related to the reasonableness of the move. The trial court
stated:

       The [factor] that the Court is struggling with the most is the reasonableness of this
       relocation and I am having the same question that Mr. Seely [the guardian ad litem]
       has in this case, that we have a chance meeting of [Mother] and Captain Belanger in
       October at an air show, probably for some short period of time. Then she is divorced
       in December — I believe December 19 was the date and then in January 15, 2004,


                                                  -7-
        there’s a letter, “Brad, I am moving to Canada.” And the question is the
        reasonableness of all of this.
                 Certainly I agree with Mr. Seely if this petition was heard shortly thereafter
        there would be no question in this Court’s mind, that certainly would not be
        reasonable, to move to Canada with — to move to Canada to marry, without a job,
        without any investigation, certainly would not be reasonable.
                 The question in this Court’s mind is whether now, in December of 2004,
        whether with the passage of that much time — whether it is still reasonable today and
        I find that it is not. I am still concerned too much about — it’s too many unanswered
        questions in the Court’s mind as to whether or not this is reasonable. [Father’s
        counsel’s] question is — was, “Is this not just an adventure,” and I feel that it is
        really is, from the questions of the witness, of what [Mother] has testified here today,
        that it appears to be a romantic adventure for her and her children, and it is not in the
        best interest of her children for the children to leave the only area and family —
        extended family that they know, to move not such an extended period but to a foreign
        country, so I find that there is not a reasonable purpose for this relocation and it is not
        in the best interest of the children under the facts of this case.

On May 19, 2005, the trial court entered an order consistent with its oral ruling, stating that,
“[a]lthough the relocation purpose is for remarriage and taking into consideration the circumstances,
testimony and specifics regarding [Mother] and her fiancé the Court finds that the move is not
reasonable and therefore is not in the best interest of the children.” From this order, Mother now
appeals.

        On appeal, Mother argues that the trial court erred in determining that her proposed
relocation did not have a reasonable purpose. She argues that relocating for remarriage is a
reasonable purpose, and that Father failed to establish that her relocation request was unreasonable
under the circumstances.

        We review the trial court’s findings of fact de novo on the record, presuming those findings
to be correct unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Robinson v.
Robinson, No. M2003-02289-COA-R3-CV, 2005 WL 1541861, at *2 (Tenn. Ct. App. June 30,
2005). We give great weight to the trial court’s credibility determinations, as the trial court is in the
best position to assess the demeanor of the witnesses. Robinson, 2005 WL 1541861, at *2 (citing
cases); Mitchell v. Mitchell, No. M2004-00849-COA-R3-CV, 2005 WL 1521850, at *1 (Tenn. Ct.
App. June 27, 2005). Issues of law are reviewed de novo, with no presumption of correctness.
Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

        It is undisputed that Mother spends a greater amount of time with the children than Father.
Therefore, Tennessee Code Annotated § 36-6-108(d) is applicable to this case. That statute provides
in pertinent part:




                                                   -8-
        The parent spending the greater amount of time with the child shall be permitted to
        relocate with the child unless the court finds:
                (A) The relocation does not have a reasonable purpose;
                (B) The relocation would pose a threat of specific and serious harm to the
        child that outweighs the threat of harm to the child of a change of custody; or
                (C) The parent’s motive for relocating with the child is vindictive in that it
        is intended to defeat or deter visitation rights of the non-custodial parent or the parent
        spending less time with the child.

T.C.A. § 36-6-108(d)(1) (2005). Under this statute, a presumption arises in favor of the relocation
request unless the opponent of the relocation can establish one of the three factors set out in
subsection (d). Subsection (e) of the statute further provides that, if one of these three grounds for
objection is established, the court shall consider the best interest of the child in determining whether
to permit the parent to relocate with the child:

        (e) If the court finds one (1) or more of the grounds designated in subsection (d), the
        court shall determine whether or not to permit relocation of the child based on the
        best interest of the child. If the court finds it is not in the best interests of the child
        to relocate as defined herein, but the parent with whom the child resides the majority
        of the time elects to relocate, the court shall make a custody determination and shall
        consider all relevant factors . . . .

T.C.A. § 36-6-108(e) (2005). As noted above, the trial court in this case determined that the
proposed relocation did not pose a threat of a specific and serious harm to the children, and that
Mother’s motive for relocating was not vindictive. The trial court based its decision on the finding
that the relocation did not have a reasonable purpose. Having found no reasonable purpose for the
relocation, the trial court then went on to find that the move was not in the best interest of the
children. Because Mother testified that she would elect to stay in Jackson if the relocation was not
permitted, the trial court did not go on to make a custody determination. Therefore, the initial
question on appeal is whether the evidence supports the trial court’s conclusion that Mother’s
proposed relocation did not have a reasonable purpose.

         In support of her position, Mother relies on Clark v. Clark, No. M2002-03071-COA-R3-CV,
2003 WL 23094000 (Tenn. Ct. App. Dec. 30, 2003). In that case, the parties were divorced by final
decree in January 2001, and the mother was designated primary residential parent for the parties’ two
daughters. In July 2001, the mother became reacquainted with an old high school friend who lived
in Richmond, Virginia. Clark, 2003 WL 23094000, at *1. In March 2002, the mother sent the father
a letter stating that she planned to marry the friend and that she was preparing to move to Virginia
with the parties’ children. The father filed a petition objecting to the relocation. The trial court held
that the mother’s proposed relocation was reasonable under section 36-6-108(d), and that, therefore,
the mother was permitted to relocate with the children, provided she and her fiancé married prior to
the relocation. The father appealed, arguing, inter alia, that the mother’s proposed relocation was
not for a reasonable purpose. The appellate court disagreed. It noted that the mother’s testimony


                                                   -9-
at the hearing was “forthright and consistent in the face of aggressive cross-examination, and she was
able to articulate a plan and a rationale for relocation that was well thought-out and took into account
the best interest of her children.” Id. at *6. The Clark court also recognized that, “despite any
uncertainty about the wisdom of her proposed move, the mother has shown the ability to think
clearly about her plan and to prepare for its consequences.” Id. at *7. The appellate court
emphasized that the mother’s fiancé was long settled in Virginia, had a career there, and could not
find comparable employment in Tennessee. For these reasons, the Clark court affirmed the trial
court’s conclusion that the mother had a reasonable purpose for her relocation. Id.

        In response, Father argues that the instant case is more like the situation in Mitchell v.
Mitchell, No. M2004-00849-COA-R3-CV, 2005 WL 1521850 (Tenn. Ct. App. Jun. 27, 2005). In
Mitchell, the parties divorced and the mother was designated primary residential parent for the
parties’ nine-year-old daughter. A few years later, the mother notified the father that she intended
to move with the child to California in order to live with her new fiancé, be close to his family, and
seek better employment. The father objected to the move. Pending the hearing on the proposed
relocation, the mother married her fiancé. After a hearing, the trial court determined that the
proposed move was not for a reasonable purpose, it posed a threat of serious and specific harm to
the child, and relocation was not in the child’s best interest. Mitchell, 2005 WL 1521850, at *1.
Mother appealed arguing, among other things, that moving to California to be with her new husband
was a reasonable purpose.

        In Mitchell, the appellate court agreed with the trial court’s finding that the mother’s
proposed relocation to California did not have a reasonable purpose and was not in the child’s best
interest. The Mitchell court observed that a parent’s proposed relocation based solely on a new
marriage does not always mean that it is reasonable for the child to relocate with the parent. Id. at
*3 (citing Schremp v. Schremp, No. W1999-01734-COA-R3-CV, 2000 WL 1839127, at *2 (Tenn.
Ct. App. Dec. 7, 2000)). It remarked that parties in such a situation frequently must make choices,
and that, “while it is reasonable for a husband and wife to want to live together, marriage often
requires sacrifices on the part of the husband and wife so they can share a residence.” Id. The
Mitchell court emphasized that no evidence was offered at trial to show why the husband could not
relocate to wife’s community and why it was more reasonable for the wife to move rather than the
husband. Therefore, the evidence did not preponderate against the trial judge’s finding that it was
not reasonable for the mother to relocate with the daughter to California. Id.

        Father also cites Schremp, which was relied upon in Mitchell. In Schremp, the mother, who
was the primary residential parent for the parties’ two minor children, sought to move to Charlotte,
North Carolina, where her new husband resided. Schremp, 2000 WL 1839127, at *1. The new
husband was a pilot with Federal Express. His work permitted him to reside in either Memphis or
Charlotte and still maintain his job. For reasons not explained, he chose to reside in North Carolina.
The trial court concluded that the mother’s proposed reason for relocating was not a reasonable
purpose. Id. at *3. Because the evidence indicated that there was no reason why the mother’s new
husband could not move to Memphis, the appellate court affirmed the trial court’s finding that the
proposed relocation had no reasonable purpose.


                                                 -10-
         To review the trial court’s decision in this case, we must interpret section 36-6-108(d)(1)(A),
which states: “The parent spending the greater amount of time with the child shall be permitted to
relocate with the child unless the court finds (A) the relocation does not have a reasonable purpose
. . . .” In order to do so, it is useful to review the genesis of this statute, and in particular this
provision.

        Some time ago, under Tennessee caselaw, the custodial parent had virtually unfettered
authority to move the child away from the non-custodial parent, regardless of the reason or the effect
on the child’s relationship with the non-custodial parent. See Thomas v. Thomas, 335 S.W.2d 827,
828 (Tenn. 1960) (“[T]he mother had the right to control the child’s whereabouts and the father had
no voice where the child should reside . . . .”), quoted in Aaby v. Strange, 924 S.W.2d 623, 625
(Tenn. 1996). As the value of involving both parents in child-rearing became more widely
recognized, Tennessee courts began to hold that the non-custodial parent could prevent relocation
of the child under some circumstances if the non-custodial parent could prove that the move was not
in the best interest of the child. See, e.g., Walker v. Walker, 656 S.W.2d 11, 18 (Tenn. Ct. App.
1983); see also Taylor v. Taylor, 849 S.W.2d 319, 322 (Tenn. 1993). The evolution of Tennessee
common law on this issue continued in Seessel v. Seessel, 748 S.W.2d 422, 424 (Tenn. 1988). In
Seessel, the mother sought to relocate the parties’ child from Memphis to Denver, Colorado.
Seessel, 748 S.W.2d at 422. The trial court denied the mother’s petition to move. The intermediate
appellate court reversed, finding no evidence that allowing the mother to move the parties’ son to
Denver would be adverse to his best interest. The Tennessee Supreme Court granted permission to
appeal “in order to correct a misapprehension of the law in this State in reference to the burden of
proof involving the relocation and removal of minor children. . . .” Id. at 423. It overruled Walker
and its progeny, holding that “[t]he burden of proof in such cases remains with the [custodial parent
seeking to relocate] to show that the best interests of the child will be better served by its relocation.”
Id. at 424.

        This decision sparked a decided increase in litigation involving the relocation of a child by
a custodial parent. See Taylor, 849 S.W.2d at 326 n.8. The Tennessee Supreme Court then sought
to ease the resolution of such cases with further explanation of the appropriate standards in Taylor
v. Taylor, 849 S.W.2d at 331. In a dense and somewhat confusing opinion, the Court held that much
of Seessel remained good law, but went on to set forth a list of at least nine factors to be considered
in relocation cases, along with “any related factual circumstances found by the court to be significant
in a given situation, [to] be weighed individually and collectively.” Id. at 332.

        Not surprisingly, instead of clarifying and simplifying the law on relocation, Taylor only
spawned further confusion and uncertainty. Conceding that Taylor was “admittedly obscure,” the
Supreme Court took up the issue again in Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996), the
decision which provided the framework for the current statute. In Aaby, the divorced parents entered
into an MDA which awarded custody of the parties’ son to the mother and granted visitation to the
father. The MDA did not prohibit the mother from moving out of state with the parties’ son. Id. at
624. Two years after the divorce, the mother filed a petition to move to Kentucky. In her petition,
she said that she had remarried, that her new husband had family in Kentucky, and that she had


                                                   -11-
found suitable employment there. The father opposed the move, asserting that it was not in the best
interest of their child. He sought to have custody changed to him if the mother moved to Kentucky.
Id.

        The trial court initially denied the mother’s petition to relocate. Shortly after that, the
Supreme Court’s opinion in Taylor was released. The trial court reconsidered in light of Taylor and
granted permission for the move. The father then sought further reconsideration and eventually the
trial court reversed itself again, holding that the mother had not proven that the move was in the
child’s best interest. The mother appealed and the intermediate appellate court affirmed the trial
court’s denial of the petition to relocate. The Supreme Court then granted permission to appeal in
order to clarify the law. Id. at 624-25.

        After reviewing the caselaw on relocation, the Aaby court reaffirmed the goals expressed in
Taylor, that is, to “(1) limit[] judicial intervention in post-divorce family decision-making, and (2)
mak[e] disputes easier of resolution if they must be litigated.” Aaby, 924 S.W.2d at 629 (quoting
Taylor, 849 S.W.2d at 331). The Court then set forth the standard for evaluating a relocation
petition:

       . . . [W]e 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 . . . 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
       are tied where removal could pose a specific, serious threat of harm to the child. In
       these situations, 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. . . . However, . . . 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.

Id. at 629-630 (footnote omitted). Thus, the Aaby court adopted a standard which made it quite
difficult for a non-custodial parent to defeat the custodial parent’s petition to relocate outside the
jurisdiction with the parties’ child; the petition would be denied only if the non-custodial parent
could prove that the custodial parent’s motives were vindictive or that the move posed a specific,
serious threat of harm to the child. Id. Since the trial court in Aaby had found that the mother’s


                                                -12-
motives for the proposed resolution were not vindictive, and there was insufficient evidence of
specific serious harm, the court held in favor of the mother, permitting relocation. Id. at 630.

        While the standard adopted in Aaby came closer to achieving the stated goals of limiting
judicial intervention and easing the resolution of disputes, it was harsh indeed for non-custodial
parents. This was recognized in the poignant dissent filed by Justice Penny White, who observed:

         [T]he rule [adopted by the majority], in my estimation, undermines the important
         efforts of those non-custodial parents who work diligently to be more than every
         other week-end mothers and fathers. While adjusting visitation schedules to
         accommodate a move aims to allow the non-custodial parent a continued relationship
         with the child, it does nothing to accommodate or encourage the non-custodial parent
         who wants to attend Johnny’s choir recital; Mary’s soccer game; or both children’s
         monthly parent-teacher conferences. The rule set forth by the majority allows a
         custodial parent to relocate to a distance that, in effect, prohibits the important non-
         custodial parental involvement described above. The move could be for no reason
         at all, so long as it could not be proved that the move was “vindictive” or
         “intended” to defeat visitation rights. I believe that such an approach unduly
         impedes that which we all desire – an opportunity for children of divorced parents
         to have meaningful relationships with both parents despite the parents’ inability to
         remain married.

         Rather than the rule set forth by the majority, I would require the custodial parent to
         establish some reason for the move that was unrelated to the non-custodial parent’s
         parenting rights.

Id. at 631 (White, J., dissenting) (footnote omitted).

        In 1998, following the court’s 1996 decision in Aaby, and clearly in response to Aaby, the
Tennessee legislature enacted section 36-6-108, which incorporates elements of the standard adopted
by the majority in Aaby as well as elements advocated by Justice White in the Aaby dissent.2 Under
the statute, the parent spending the greater amount of time with the child who seeks to relocate “shall
be permitted” to do so unless the parent opposing the move proves at least one of three grounds.
Two of the grounds are similar to the grounds set forth by the Aaby majority: the parent’s motive for
relocating with the child is vindictive, or the relocation poses a threat of specific and serious harm
to the child. T.C.A. § 36-6-108(d)(1)(B) & (C) (2005). As in Aaby, the examples of a “threat of
specific and serious harm” make it clear that the statutory term does not mean simply the disruption


         2
           The statute addresses the situation in which the divorced parents are spending substantially equal intervals of
time with the child, which was not addressed in Aaby. Under those circumstances, there is no presumption in favor of
or against relocation, and the trial court’s decision must be based entirely on the best interest of the child. T.C.A. § 36-6-
108(C) (2005). In this case, we focus on the provisions addressing the situation in which the divorced parents are not
spending substantially equal intervals of time, and the primary residential parent seeks to relocate with the child.

                                                            -13-
and distress which normally accompanies a move.3 The statute also, however, sets forth a third
ground for opposing relocation that hearkens to the dissent in Aaby, that is, if the parent opposing
relocation proves that the proposed relocation “does not have a reasonable purpose.” T.C.A. § 36-6-
108(d)(1)(A) (2005). Under the relocation statute, the court addresses whether relocation is in the
best interest of the child if, and only if, the court finds that the parent opposing relocation has
established at least one of the three enumerated grounds.4 See T.C.A. § 36-6-108(e) (2005).

        Therefore, the relocation statute mandates a grant of permission to relocate unless the parent
opposing relocation proves at least one of the three enumerated grounds. The court does not reach
the issue of whether the move is in the best interest of the child unless one of the grounds is proven.

         Although the statute does not elaborate on the meaning of the ground that the relocation
“does not have a reasonable purpose,” since the statute was apparently enacted with reference to the
court’s opinion and dissent in Aaby v. Strange, we interpret the statute against that backdrop. In her
dissent, Justice White obviously emphasized the seriousness of the loss, to the child as well as the
non-custodial parent, of the opportunity for the non-custodial parent to participate in the child’s
activities, such as soccer games and recitals, even if the activities do not fall within the non-custodial
parent’s designated “parenting time.” Aaby, 929 S.W.2d at 631. She advocated requiring the parent
who proposes to relocate to establish “some reason” for the move, observing that such a rule would
oblige the custodial parent to “deliberate” and “evaluate” a decision to move, without impeding “the
custodial parent’s freedom of movement. . . .” Id. She advocated an approach that would “not
destroy the efforts” of non-custodial parents “to participate more fully in their children’s lives. . . .”
Id.

         While the Aaby dissent advocated requiring the relocating parent to prove “some reason” for
the move, the statute ultimately enacted incorporated a more rigid structure. First, the parent seeking
to relocate with the child must notify the other parent of the proposed move. T.C.A. § 36-6-108(a)
(2005). The notice must contain, inter alia, the relocating parent’s “reasons for the relocation. . . .”
T.C.A. § 36-6-108(a)(3) (2005). If the parties cannot agree, the parent opposing relocation must file
a petition stating such opposition. T.C.A. § 36-6-108(d)(1) (2005). The parent seeking to relocate
may not do so until he or she has received the court’s permission. Id. The statute then provides that
the court “shall” grant such permission to relocate unless it finds one of the enumerated grounds for
denial of permission, such as the fact that the relocation does not have a reasonable purpose. Id.




         3
            Statutory examples of specific and serious harm include moving the child to an area without adequate medical
facilities or acceptable education facilities, or to a foreign country without a functioning legal system to enforce the rights
of a non-custodial parent. T.C.A. § 36-6-108(d)(2) (2005). See Aaby, 924 S.W .2d at 629-30 n.2.

         4
         In this way, the relocation statute is similar to Tennessee’s statutes on termination of parental rights, which
permit courts to assess the best interest of the child only if one of the statutory grounds for termination are proven.
Com pare T.C.A. § 36-1-108(e) with T.C.A. § 36-1-113(C) (2005); see In re Marr, 194 S.W .3d 490, 495 (Tenn. Ct.
App. 2005).

                                                            -14-
        Therefore, in sum, the parent seeking to relocate is required initially to state his or her reasons
for the proposed relocation. T.C.A. § 36-6-108(a)(3) (2005). The burden then is on the parent
opposing the move to prove that the proposed relocation “does not have a reasonable purpose.”
T.C.A. § 36-6-108(d)(1)(A) (2005). If this burden of proof is not carried, the trial court is obliged
to grant permission for the relocation. Id.

        In context, it is clear that the “reasonable purpose” of the proposed relocation must be a
significant purpose, substantial when weighed against the gravity of the loss of the non-custodial
parent’s ability “to participate fully in their children’s lives in a more meaningful way.” Aaby, 924
S.W.2d at 631. However, the statute clearly includes a presumption in favor of permitting relocation,
which appears to reflect the Aaby majority’s observation that “the interests of the custodial parent
and the interests of the child are basically interrelated, even in they are not always precisely the
same.” Id. at 629. Moreover, the statute is plainly structured so that the issue of the best interest of
the child is not reached unless and until a ground to deny relocation is established. This structure
suggests that the “reasonable purpose” ground is not intended to be a guise under which the trial
court goes directly to the question of whether the move is in the child’s best interest, as was the
common law under cases preceding Aaby v. Strange. This statutory structure facilitates the goals,
reiterated in Aaby, of limiting judicial intervention and making disputes easier to resolve if they must
be litigated. Id.

        How, then, is the statute applied in the case at bar? In this case, the trial court “struggled”
with evaluating the reasonableness of Mother’s purpose for the move. It noted the apparent
impulsiveness of Mother’s decision to marry Belanger and move with the children to Canada — first
meeting Belanger in a “chance meeting” in October, 2003, divorcing Father in December 2003, and
announcing the impending marriage and move in January 2004. The trial court observed, however,
as did the guardian ad litem, that substantial time had passed from Mother’s initial announcement
in January 2004 and the hearing in December 2004. Nevertheless, the trial court, after having heard
the witnesses testify, concluded that the proposed relocation was “a romantic adventure for [Mother]
and her children” and therefore was not for a reasonable purpose.

        Clearly there is support for the trial court’s observations. Mother’s testimony reflects a
stubbornly idealized view of the benefits to the children of the proposed move to Canada, a refusal
to admit that the children would suffer any detriment whatsoever from moving away from familiar
surroundings and extended family, and grievous naiveté about the impact of the relocation on
Father’s ability to participate in their daughters’ day-to-day activities. The short time frame between
Mother meeting the Canadian fighter pilot and her decision to marry him and move with her children
over a thousand miles away supports the finding of Mother being swept away in a “romantic
adventure.”5 Only after Father protested did Mother investigate the suitability of the surroundings
and facilities in Canada for the parties’ daughters. Father testified persuasively that the move would


         5
           This is likewise supported by Mother’s initial letter to Father in January 2004, announcing her decision to move
with their daughters to Canada, without mentioning Belanger and extolling the advantages of living in Canada as being
“in the best interest of the girls.”

                                                          -15-
be much more difficult for their daughters than Mother described, and would have real adverse
impact on his ability to remain close to them.

        On the other hand, regardless of the impulsiveness of Mother’s initial decision, by the time
of the hearing nearly a year later, there was no indication that Belanger was an unsuitable person to
have in the home with Mother and the children, the ramifications of the proposed relocation had been
investigated, and both Mother and Belanger remained committed to marry. The testimony was
undisputed that, if Belanger left Canada and moved to Tennessee, he would be required to leave his
career in the Canadian armed forces and lose a pension that had been accruing some eighteen years.

        If Mother’s intent was simply to move with the children to Canada so that the girls could
engage in winter sports and learn to speak French, clearly that would not be a “reasonable purpose”
for the proposed relocation when juxtaposed against the cost of such a move to Father and the girls.
Here, however, her undisputed purpose is to marry a Canadian citizen.6 Moreover, as in Clark v.
Clark, there is undisputed evidence that Mother’s fiancé has long been settled in Canada, could not
find comparable employment in Tennessee, and would suffer substantial adverse impact to his career
and accrued pension rights if he moved to Tennessee. See Clark, 2003 WL 23094000, at *7. This
is a substantial purpose for the proposed relocation. Pursuant to the statute, the court is not
authorized to reach the issue of the best interest of the children unless and until the parent opposing
relocation has proven by a preponderance of the evidence that the relocation does not have a
reasonable purpose. Under all of the circumstances of this case, we must conclude that the evidence
preponderates against the trial court’s finding that the proposed relocation does not have a reasonable
purpose. Therefore, this finding is reversed.

         The trial court found no other ground for rejecting Mother’s request to relocate. Under the
statute, relocation with the child “shall be permitted” unless the court finds one of the enumerated
grounds. Accordingly, we must reverse the trial court’s grant of Father’s petition opposing
relocation. The trial court is directed to grant Mother’s petition for permission to relocate, and the
cause is remanded for the trial court to consider related issues such as modification of the parenting
schedule.

       The decision of the trial court is reversed and the cause remanded for further proceedings not
inconsistent with this Opinion. Costs on appeal are assessed against Appellee Brad Anthony
Webster, for which execution may issue, if necessary.




                                                                ___________________________________
                                                                HOLLY M. KIRBY, JUDGE



       6
           Father does not dispute that Mother’s intent to marry Belanger is genuine.

                                                         -16-
