The 40% Solution: Substantial Equality and the Relocation Statute

As you know from a recent post, the Tennessee Supreme Court recently addressed the relocation statute in Kawatra v. Kawatra. Although the court set out guidelines for calculating whether parents are spending "substantially equal" time with their children, the court ignored the elephant in the room: How equal is "substantially equal"?

The court did provide some interesting clues. The trial court had determined that Ms. Kawatra spent 58.59% of the time with her child compared with Mr. Kawatra's 41.41%. The trial court found this division "substantially equal." Now, the Supreme Court could have simply held that 58.59% is not substantially equal to 41.41%. Instead, the court recalculated the time each parent spent with the child.

Under the Supreme Court's calculation, Ms. Kawatra spent 62.2% of the time with her child, compared with Mr. Kawatra's 37.8%. The court held that 62.2% to 37.8% was not substantially equal. But the Supreme Court's recalculation increased Ms. Kawatra's percentage less than 4%. Was this 4% dispositive? If not, why would the court have bothered to redo the calculation?

The clear implication is that 40% is the magic number: a parent who is spending at least 40% of the time with a child is spending "substantially equal" time. Does this conclusion comport with your understanding of the plain meaning of "substantially equal"? Is $4,000 substantially equal to $6,000? Is 150% substantially equal to 100%? Is "two for you, three for me" substantially equal? In Kawatra, the Supreme Court's answer appears to have been "yes."