holding that "removal is not, in and of itself, a change of circumstances sufficient to justify modification of the custody order"
How later courts described this case
- holding that "removal is not, in and of itself, a change of circumstances sufficient to justify modification of the custody order"
- recognizing the child’s need for stability when considering whether to allow the custodial parent to move the child to another state
- moving custodian's burden satisfied by showing of good faith reason for move and prima facie showing that move comports with child's best interests
- “Adjustments and accommodations must be made as a result of the divorce, the whole point of which was to permit each parent to go his or her own way. Within reason, both parties must be permitted to do so, and the child’s best interests must be served within that context.”
Written by the judges who cited it.
The opinion
O’BRIEN, Justice,
dissenting.
The lead opinion, evidences an intensive and extraordinary degree of research, largely in other jurisdictions, in order to fashion a rule which appears to be solely for the purpose of meeting the exigencies of this case.
*334 While conceding that what is referred to as the Seessel-Rogero-Nichols trilogy 1 remains good law and citing the procedural rule announced in Seessel and Nichols, and followed in Rogero, the opinion ignores the evidence considered in the trial court to state “the ineluctable conclusion that the judgements of the trial court and the Court of Appeals must be reversed” and that plaintiff has “discharged her burden of proof” by showing a universally accepted reason for the move — her remarriage to someone who was living for an equally good reason, some distance from Memphis.
It is obvious a great deal more evidence was considered by the trial judge than Ms. Taylor’s [Mitten] desire to remove herself to Iowa where her new husband was in school.
Seessel and Rogero both involved joint custody, while in this case custody was fixed by agreement between the parties. Nichols was virtually a case of joint custody. It is incontrovertible that every case is factually different. It is the function of the trial judge and not the appellate courts to consider the facts in every case and base a ruling on those facts.
The majority recognized the analytical process to be followed which is stated in Rogero v. Pitt, and bears repeating:
There are few legal formulae or invariable principles to guide the court 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.
Despite this recognition of a clear, and valid law and principles to be followed, the lead opinion continues with an exercise in tedium to assume the function of a trial court in which it emasculates the trial judge and abrogates the statutory law on child custody and visitation.
I dissent.
. Seessel v. Seessel, 748 S.W.2d 422 (Tenn.1988): Rogero v. Pitt, 759 S.W.2d 109 (Tenn.1988); and Nichols v. Nichols, 792 S.W.2d 713 (Tenn.1990).