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Can You Move out of State with Your Child When There Is No Child Custody Agreement?

On Behalf of | Jul 30, 2019 | Divorce

Dealing with child-related matters as a single parent or while going through a divorce or separation involves complex legal issues with potentially serious implications for your parental rights. As a result, before making any decisions about when and where to take your children, it is imperative that you seek personal legal advice from an experienced family law attorney. This is particularly true in the absence of a child custody agreement or court order, as your rights will be determined by statutory law and court rulings from prior cases.

The General Rule for Moving out of State Under Tennessee Law

Since most situations involve a custodial parent seeking to relocate out of state, we will start there. Under Section 36-6-108 of the Tennessee Code, if a custodial parent seeks to relocate out of state, that parent must provide notice to the child’s other parent at least 60 days prior to moving – absent exigent circumstances. The notice must be sent to, “the other parent’s last known address by registered or certified mail,” and it must contain:

  • A statement of the parent’s intent to move;
  • The location where the parent intends to move;
  • The reason(s) for the proposed relocation; and,
  • A statement that the other parent may file a petition to oppose the move within 30 days.

Section 36-6-108 also states that, “[u]nless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors . . . [and] the availability of alternative arrangements to foster and continue the child’s relationship with . . . the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.” Relevant factors for determining whether a custodial parent will be permitted to relocate out of state with their child include:

  • Whether there is a “reasonable purpose” for the relocation;
  • Whether the relocation would, “pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child with a change of custody;” and,
  • Whether the relocation serves a “vindictive” purpose that is intended to prevent or limit the other parent’s access to the child.

Ultimately, as with all custody determinations, the determination of whether a custodial parent will be permitted to move out of state with his or her child must be made based upon the “best interests” of the child involved. If it is in the child’s best interests to move, or if his or her best interests can continue to be met in spite of the custodial parent’s relocation, then moving out of state will be a viable option for the custodial parent.

What If You Do Not Have a Custody Agreement?

If you do not have a formal custody agreement or custody order, this likely means either that you are still married or that you have a child out of wedlock. In either case, moving out of state with your child without obtaining formal court approval is likely to be inadvisable. Depending on the circumstances involved, it could even be a criminal act under Tennessee law. Once again, before doing anything that could jeopardize your freedom, your legal rights, or your relationship with your child, you need to discuss your situation with an attorney.

Regardless of your current family circumstances, the key to securing parenting rights is to obtain a formal custody order from the appropriate Tennessee court. If you are married and planning to file for divorce, you will address child custody and visitation as part of the divorce process. If you and your spouse are on speaking terms, you may be able to work out a parenting plan that allows you to relocate while also serving your child’s best interests. If you are unmarried, you can petition the court for a custody order independent of the other aspects of the divorce process (although you will likely need to address child support as well).

What If I Am in Fear for My Child’s (or My Own) Safety?

If you are seeking to move because you are in fear for your child’s (or your own) safety, there are emergency legal remedies available under Tennessee law. You should speak with an attorney about your options right away. While you may be permitted to move without a custody agreement in place, even if you believe you or your child is in danger, taking your child away from his or her other parent without a judicial order could get you into trouble. These types of scenarios are usually highly fact-specific, and you will need to make an informed decision based on legal advice that is tailored to the unique circumstances you are facing.

What If I Have Not Formally Established Paternity?

Under Tennessee law, a husband is presumed to be the father of a child conceived or born during his marriage. If this presumption does not apply to you, then you must establish your parentage through a formal paternity proceeding. This must be done before you can seek custody or visitation (and also before you can petition for a court order permitting you to move to another state with your child). This additional step is unique to unmarried fathers. And while it takes time, it is necessary in order to secure the parenting rights you desire.

Speak with a Child Custody and Family Law Attorney at Batson Nolan PLC

If you need legal advice about your rights as a parent in Tennessee, we encourage you to contact us promptly for a confidential initial consultation. We can help you understand your options and make an informed decision about what to do next. To speak with an attorney at our offices in Clarksville or Springfield, call 931-650-5484 or tell us how we can help online today.