Toyos v. Hammock: Allowed Parental Relocation Reversed

In 2005, a child was born to these unwed parents.  That same year, the Father was established as the child’s biological father, and he was granted visitation with the child.

OLYMPUS DIGITAL CAMERAThe Mother was designated the child’s primary residential parent, with 275 days per year with the child. The Father received 90 days per year with the child. Father had visitation every other weekend, certain holidays, four weeks during the summer, and each Wednesday night.

Around January 19, 2010, Mother sent a certified letter to Father, expressing her intent to relocate from Memphis to Rockvale, Tennessee in Rutherford County. The stated reason for this relocation was the Mother’s pregnancy and intent to marry her fiance (father of the child she was carrying). On January 26, 2010, Father filed a petition in opposition to this move and requesting that he be designated the child’s primary residential parent. Father claimed that for one year he had defacto substantially equal parenting time with the child and had participated in the child’s activities in school and elsewhere. The Father also argued that Mother’s relocation had no reasonable purpose, and that it would pose a specific and serious harm to the child that outweighed the threat of harm to the child of a change of custody. Therefore, Father argued the relocation should be denied.

In response, the Mother also requested changes to the parties’ current orders. She specifically requested that she be designated as the final decision-maker regarding all major decisions. Mother also denied that Father had spent substantially equal time with the child during the past year, and she alleged that the Father did not personally care for the child during his parenting time (Testimony showed that, although the Father could control his own work schedule and owned his own business, he utilized his girlfriend and a nanny to transport the child to and from school and to her first dental appointment, and he does not keep the Mother informed. The Father also provides a nanny for the child during his parenting time.). The Court also found that the Father had failed to participate in the child’s education, including a failure to attend parent teacher conferences.

To accommodate her relocation, the Mother requested that Father’s parenting time be reduced from 90 days per year to 80 days per year.

After a THIRTEEN day hearing, the trial court found that the parents had not spent substantially equal time with the child, as the Father claimed. The trial court also found that the Mother’s reason for her relocation was both reasonable and in the child’s best interest (although no hearing was held to specifically address the relocation issue). Therefore, the trial court found that the Mother’s relocation was a material change of circumstances, but the court did not find that a change of custody was in the child’s best interest. In fact, the trial court found that a change of custody would harm the child more than simply modifying the Father’s visitation to allow the Mother and child to relocate.

The Mother was allowed to relocate immediately. Father’s parenting time was adjusted to allow for the relocation, and Father appealed.


Father argued that the trial court erred by bifurcating the modification and relocation hearings. The trial court heard testimony on the modification, but the Father alleged that he was not able to present proof regarding relocation. The Mother admitted that bifurcation occurred, but claimed that the Father was afforded opportunities to present evidence related to relocation.

Modification of a custody arrangement involves a 2 step analysis. First, the parent attempting to modify the existing custody order must prove that a material change in circumstances has occurred. Not all changes will warrant a change in custody. There are no set rules for when there has been a change of circumstances sufficient to justify a change of custody. Instead, that determination depends on the facts of each case.

In determining whether a material change in circumstances has occurred, the courts consider: 1) whether the change occurred after the entry of the current order; 2) whether the changed circumstances were not reasonably anticipated at the time of the current order; and 3) whether the change is one that affects the child’s well-being in a meaningful way.

If a material change of circumstances is proven, the court must then consider whether modification of the custody arrangement is in the child’s best interest.

The Court of Appeals affirmed the trial court’s decision related to modification of custody, stating “a modification of the primary residential parent is not in the child’s best interest.” This finding was primarily based on the fact that the Mother had served as the child’s primary caregiver, while the Father often relied on others to help care for the child.

The Court of Appeals then considered the relocation issue.

Tennessee Code Annotated §36-6-108, provides that if a parent who spends intervals of time with a child desires to relocate more than 50 miles from the other parent, the relocating parent must provide notice to the other by registered or certified mail at least 60 days prior to the proposed move. It further states that, if the parents spend substantially equal time with the child, there is no presumption in favor of or against relocation. Instead, when parents have substantially equal time with a child, the court determines whether to allow a relocation solely based on what is in the child’s best interest, considering factors set forth in Tennessee Code Annotated §§36-16-108(c)(1)-(11).

If, however, parents do NOT have substantially equal time with a child, the parent spending the greater amount of time with the child will be permitted to relocate unless the court finds the relocation has no reasonable purpose, 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 because the move is vindictive (in that it is intended to defeat or interfere with the other parent’s visitation).

The court in this case found that Father did not spend substantially equal time with the child.

On the relocation issue, the Court reversed the trial court, stating:

Tennessee has long recognized that a parent’s right to custody is a fundamental liberty interest which may not be abridged absent due process of law. Father and his counsel reasonably believed they would be allowed to present relocation-specific evidence at a second hearing. However, due to the trial court’s discrediting of Father’s testimony and its conclusion that a second hearing would be “redundant[,]” no such hearing ever occurred. In ruling on the relocation issue after limiting the evidence to that concerning modification, the trial court effectively denied Father his day in court. We find no waiver of the relocation issue by Father, as the trial court offered Father the opportunity to schedule a relocation hearing only after it had announced its decision to allow Mother’s relocation.

Therefore, the trial court’s order allowing Mother to relocate immediately was vacated, and the case was sent back to the trial court for an evidentiary hearing on the issue of relocation. However, the child was allowed to reside in Rockvale (a suburb of Murfreesboro, TN) pending resolution of the issue.

**One interesting thing to note in this case is that the trial court restricted the Father from having any girlfriend spend the night while he was caring for the child, even though the Father and his girlfriend of 2 years had been spending nights together throughout that time. This decision was reversed on appeal, with the Court of Appeals finding that the trial court made no finding that allowing Father overnight visitation with the child while a girlfriend is present would jeopardize the child, in either a physical or moral sense.

Toyos v. Hammock:No. W2011-01649-COA-R3-JV

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