Child Relocation 2024 Comparisons

The standard for determining the issue of relocation differs depending on the underlying custodial arrangement. In cases where the primary or sole custodial parent is seeking relocation, guidance was provided in Hollandsworth v Knyzewski, 353 Arkansas 470, 109 S.W.3d 653 (2003). In Hollandsworth, the Arkansas Supreme Court created a presumption in favour of the custodial parent’s request for relocation. In creating this presumption, the Supreme Court shifted the ultimate burden of proof to the non-custodial parent. The parent opposing the move must prove that the proposed relocation will negatively impact the minor child.

Singletary v Singletary, 2013 Arkansas 506, 431 S.W.3d 234 (2013) distinguished the relocation standard for situations in which both parents share joint custody of the minor child and one seeks to relocate. The Court in Singletary explained that a separate analysis is required in joint custodial situations, because when both parents spend equal time with the child, one relationship should not take precedence over the other. In situations such as these, the trial court must first analyse whether a material change in circumstance has occurred, and if so, whether a change of custody is in the best interests of the minor child.

Recognising that custodial arrangements are not always spelled out in black and white, the Arkansas Supreme Court provided additional guidance in Cooper v Kalkwarf, 2017 Arkansas 331, 532 S.W.3d 58. The Cooper court clarified the holding in Hollandsworth by finding that the presumption discussed above applies not only to primary custodial parents, but to those parents that spend significantly more time with the child then the other parent. Likewise, the Cooper court noted that the Singletary analysis can apply to cases that do “not necessarily involve a precise ‘50/50’ division of time” but also to those situations where “parental influence and commitment, involvement in the child’s daily activities, and responsibility for making decisions on behalf of the child” have been demonstrated. (532 S.W.3d 58, 67.)

As with all cases involving minor children, the primary concern is still the best interests of the minor children. In determining whether to allow the proposed relocation, the trial court may consider the following:

• reason for the relocation;
• educational, health and leisure opportunities in the new location;
• non-custodial parent’s current visitation and communication schedule and the potential impact on that schedule if the proposed relocation is allowed;
• effect of the move on the extended family relationships; and
• preference of the minor child, if the child is of sufficient age and maturity.

In situations where the primary custodial parent seeks relocation and Hollandsworth applies, relocation alone is not a material change in circumstances that would warrant a change in custody. (See, Wells v Wells, 2024 Arkansas App. 348 (2024).)

The trial court may consider the preference of the minor child when determining whether to permit a request for relocation. In Arkansas, there is no specific age at which a court may listen to or consider the wishes and preferences of the minor child. The court must make a determination regarding the child’s mental capacity, maturity and age on a case-by-case basis. While the wishes and desires of the minor child are not binding on the trial court, they should be properly considered in light of other evidence produced at trial.

The judge must determine on a case-by-case basis whether the minor child is of sufficient age, maturity and mental capacity to have a reasonable opinion about the proposed relocation. There is no specific age at which the court may consider the minor child’s opinion. There have been cases in which the trial court has found that a 12-year-old is not of sufficient maturity to form a reasonable opinion. Typically, the older the child is, the more likely the court is to find the child of sufficient age and maturity. It is important to note that, even if the court finds the child to be of sufficient age and maturity to form a reasonable opinion regarding the relocation, the court is not required to grant that child’s request but, rather, must thoroughly consider other best interest factors.

In Arkansas, both the legislature and the courts have recognised the unique bond between siblings and, given that bond, have prohibited sibling separation absent exceptional circumstances. However, this prohibition does not exist for half or step siblings. As noted in the appellate case of Respalie v Respalie, 25 Arkansas App. 254, 756, S.W.2d 928 (1988), courts “cannot always provide flawless solutions to unsolvable problems, especially where only limited options are available”.

One of the specific things the trial court must consider when deciding a relocation issue is the impact that the relocation would have on the non-custodial parent’s visitation and communication with the minor child, as well as the impact that the move would have on the child’s relationship with extended family members. While the impact on the non-custodial parent’s visitation with the minor child is a factor the trial court must consider, that issue alone is not dispositive of the issue. The trial court must also consider whether an alternative visitation schedule exists which could limit the loss of contact.

In the case of Benedix v Romeo, 94 Arkansas App. 412, 232 S.W.3d 493 (2006), the custodial parent requested permission to relocate four and a half miles from Conway, Arkansas. Following relocation, the father’s visitation with the minor child would remain the same except for his mid-week overnight visit with the child. The Court of Appeals reversed the trial court’s ruling denying the mother’s request for relocation, finding that there was insufficient evidence to support the trial court’s finding that an alternative visitation schedule could not provide for meaningful visitation with the minor child.

In Cox v Cox, 2019 Arkansas Appeal 197, 574 S.W.3d 711, 717 (2019) the court acknowledged that the Hollandsworth presumption presupposes that visitation and communication with the non-custodial parent will be impaired as a result of relocation, but as long as meaningful visitation continues, then the presumption in favour of relocation is not rebutted.

There is a presumption that the custodial parent’s request for relocation should be granted and is being made in the best interests of the minor child. Courts are particularly sympathetic to parents seeking relocation for employment and financial considerations presumably because these considerations would negate any claim that the parent seeking relocation was doing so solely to interfere with visitation.

One of the most powerful grounds for opposing relocation is that the custodial parent is relocating solely to interfere with the non-custodial parent’s visitation with the minor child and/or for purposes of alienation. In Sill v Sill, 94 Arkansas App. 211, 228 S.W. 3d 538 (2006), the mother filed a petition to relocate to Miami, Oklahoma. At trial, the mother testified that she actually earned less at her job in Oklahoma than she did in Arkansas prior to relocation. Following trial, the court found that the father had rebutted the relocation presumption and that the mother attempted relocation solely for the purpose of interfering with the father’s visitation and alienating the minor children. The Arkansas Court of Appeals affirmed the trial court’s decision.

Similarly, in Alsina v Hicks, 2023 Arkansas App. 485, 678 S.W.3d 449 (2023), the mother, who had primary custody of the minor child, sought to relocate to Seattle, Washington, claiming she had obtained employment there. Father objected and moved for a change of custody. In the trial court’s order awarding father custody and denying mother’s request to relocate, it found numerous instances of mother trying to interfere with father’s relationship with the minor child and cut him out of the child’s life. The trial court found that the mother’s requested relocation, “combined with the Court’s belief that the mother’s behaviour is only going to continue, would destroy the relationship between [father] and the minor child.” (678 S.W. 3d at 451.) The Arkansas Court of Appeals affirmed the trial court’s decision.

The cost of relocation proceedings, like the cost of all family law matters, is difficult to predict given the unpredictability of the behaviour of the opposing party. If the parties are able to negotiate and/or mediate the issue of relocation and come to an agreement relatively quickly, the costs will be less than those cases that are actively litigated and result in a trial before the court.

While there is no specific time frame within which the court must decide or hear a relocation request, Arkansas courts make a concerted effort to deal with family law matters expeditiously. It is important for litigants to keep the court informed if there is a specific proposed date for relocation so that the court can attempt to hear the matter prior to that date.

As a result of the Supreme Court creating the presumption in favour of the party seeking relocation in the Hollandsworth v Knyzewski case, trial courts are necessarily more sympathetic to custodial parents. Notwithstanding the presumption, trial courts are still required to consider the reason for relocation as a factor in reaching a determination regarding relocation. If the trial court finds that the custodial parent is relocating for purposes of interfering with visitation, it can deny that parent’s request.