Child Relocation: Relocation by Parent with Sole or Primary Physical Custody: Presumption in Favor of Relocation
National Legal Research Group, Inc.
Several jurisdictions have adopted a relatively permissive standard in resolving relocation disputes. In these jurisdictions, courts apply a presumption in favor of the custodial parent's right to relocate with a child, with the burden on the noncustodial parent to establish that the move is not in the child's best interests. Representative of this permissive approach is the Arkansas Supreme Court's decision in Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), where the court rejected a more restrictive burden of proof and instead adopted a standard which treats the relocation decision of the custodial parent as presumptively correct.

The wife in Hollandsworth was awarded primary custody of the parties' children, with the husband receiving visitation rights. On their own, the parties agreed that the father could have more visitation than provided in the order and allowed him to spend three and one-half days per week with the children. Two months after the parties' divorce, the mother remarried. Her new husband was in the Army, was stationed in Kentucky, and maintained a residence in Tennessee. Three months after the parties' divorce, the mother informed the father that she was moving to Tennessee with the children. The father filed a petition seeking to enjoin the mother's relocation as well as seeking primary custody of the children, and the mother petitioned for permission to relocate.

The trial court granted the husband's petition and ordered a modification of custody. The trial court found that the burden was on the mother to demonstrate "a real advantage to herself and to the minor children" resulting from the planned relocation. 109 S.W.3d at 656. The trial court found that the mother failed to carry this burden based primarily on the interference the move would cause on the father's relationship with the children. The court also discounted the benefits of the relocation, including the stability and income provided by the mother's new husband.

The Arkansas Court of Appeals reversed the trial court's decision, finding that the facts of the case established that there were real advantages to the children from the mother's proposed relocation, and the husband appealed.

The Supreme Court of Arkansas also found that the trial court's decision to modify custody was in error; however, the supreme court held that the real- advantage test was not the correct standard to be applied in relocation cases. The court reached this conclusion only after reviewing the relevant standards employed by other jurisdictions to settle relocation disputes. The court noted that jurisdictions tend to follow one of three possible standards.

As our society has become more and more mobile, some courts around the country have imposed a presumption against relocation, while others have imposed a presumption in favor of relocation, and still others have simply applied a best-interest analysis. Id. at 658.

Turning to Arkansas law, the court concluded that the court of appeals had relied on the wrong standard in reaching the determination that the father should not be the custodial parent. The court noted that the "real-advantage" standard employed by both the trial court and the court of appeals stemmed from several earlier court of appeals' decisions. See Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994); Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). The supreme court rejected the rule from these earlier lower court decisions and instead announced a presumption in favor of relocation for custodial parents with primary custody. The court found that the court of appeals had ignored earlier supreme court authority which relied on the principle that "[t]he custodial parent is ordinarily authorized to relocate to another state and take the child with him or her." Hollandsworth, 109 S.W.3d at 663 (citing Walter v. Holman, 245 Ark. 173, 431 S.W.2d 468 (1968)). The court expressly overruled the court of appeals' decisions and set forth the following standard for use in relocation cases:
Historically, this court has recognized the right of the custodial parent to relocate and to relocate with his or her children, and we adhere to that determination in this case. Today, we hold that relocation alone is not a material change in circumstance. We pronounce a presumption in favor of relocation for custodial parents with primary custody. The noncustodial parent should have the burden to rebut the relocation presumption. The custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating. Hollandsworth, 109 S.W.3d at 663.
Based on the new standard promulgated in Hollandsworth, the court held that the wife should be permitted to relocate out of state with the children. The court found that there was no evidence presented that the relocation would be detrimental to the children and that the mother had a valid reason for wanting to move. The court also noted that the father would be able to maintain sufficient visitation with the children and that the mother was willing to comply with the new visitation schedule.

A similar presumption in favor of the custodial parent's right to relocate can be found in the Oklahoma Supreme Court's decision in Kaiser v. Kaiser, 23 P.3d 278 (Okla. 2001). In Kaiser, the mother was named the custodial parent, with the father receiving visitation rights pursuant to a final judgment for divorce. The mother subsequently sought the court's permission to move out of state with the parties' child, as she had accepted a new job which offered higher pay and a greater chance for advancement. The mother also alleged that the proposed move would be beneficial to the child, offering enhanced educational and cultural opportunities. The trial court concluded that the harm that would be caused by decreased interaction with the father outweighed any benefits from the proposed relocation and denied the mother's request to move.

Due to the mother's compliance with the trial court's order, the mother lost her job opportunity out of state during the pendency of her appeal. Despite this fact, the Supreme Court of Oklahoma proceeded with the appeal, even though it was argued that the mother's appeal had become moot, because it was possible that the mother would have other job opportunities out of state. The court found that the trial court had erred in not allowing the relocation and reversed its decision.

On appeal, the mother argued that she had a statutory right to change the residence of the child. The statutory language relied on by the mother reads as follows:
A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child.
Okla. Stat. Ann. tit. 10, 19. While the statutory language had apparently been the law in Oklahoma for over 100 years, the court stated that it had never been applied before in a relocation case. The court also noted that California, Montana, and South Dakota had adopted identical provisions and that courts in those jurisdictions had interpreted the effect of this statute as giving rise to a presumption in favor of a custodial parent's decision to relocate. In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 2d 444 (1996); In re Marriage of Paradis, 213 Mont. 177, 689 P.2d 1263 (1984); Fortin v. Fortin, 500 N.W.2d 229 (S.D. 1993). After reviewing the law of other jurisdictions, the court reached the following conclusion:
The majority of jurisdictions which have considered this subject have adopted approaches which favor the custodial parent's right to move away from the state with their child even though they do not have a presumptive right to relocate statute such as 10 O.S. 1991 19.99. While the relevant statutory enactments which are placed at issue in those cases vary widely from state to state and some states have no applicable statutes, the decisions are generally based on judicial recognition of the post-divorce new family unit, and stability and continuity of the child's relationship with his primary custodian as the most important factor affecting the child's welfare. These courts also recognize that the well-being of the child is fundamentally interrelated with the well-being of the custodial parent, and that parent is the best person to make decisions affecting the child and the new family group, such as where they will reside. The courts therefore accord those childrearing decisions deference, and hold that judicial intervention in that decision making process should be limited to only the most extreme circumstances. We find the reasoning of these courts persuasive in our effort to establish a standard for determination of relocation actions.
Kaiser, 23 P.3d at 284-85. Based on the conclusions it drew from the law of other jurisdictions, the court held that the custodial parent had the presumptive right to relocate and placed the burden on the objecting parent to prove that the effect of the proposed move would adversely affect the child to such a degree that a transfer of custody was warranted.

In a relocation case the noncustodial parent seeking to restrain the custodial parent from moving must meet a heavy burden to show that circumstances justify reopening the question of custody. The custodial parent's decision to move from Oklahoma to a different location with the child is not in itself a change of circumstances which will justify a change of custody. The dispositive issue is not the decision to relocate, for the custodial parent has the presumptive right under 10 O.S. 1991 19 to move with the child. The dispositive issue is the fitness of the custodial parent and whether the child will be placed at risk of specific and real harm by reason of living with the custodial parent in the new location. Id. at 286-87. It should be noted that much of the out-of-state authority relied on by the court in Kaiser is no longer valid. As discussed fully in Part II(B), the California Supreme Court has recently modified the rule announced in Burgess. Additionally, both Montana and South Dakota have removed this presumption by statutes. Montana has repealed its version of the statute relied on by the Kaiser court. South Dakota, while retaining this statutory language, has recently enacted more specific statutes governing relocation which seemingly place the burden of proof on the relocating parent to establish that relocation is in the child's best interests. S.D. Codified Laws 25-4A-17 et seq. (2004).

For other cases recognizing a presumption in favor of the custodial parent's decision to relocate, see, e.g., Rutz v. Rutz, 644 N.W.2d 489 (Minn. Ct. App. 2002) (recognizing presumption in favor of custodial parent's right to relocate with child); Casey v. Casey, 58 P.3d 763 (Okla. 2002) (fit custodial parent had statutory right to relocate with her children; husband failed to rebut her right by establishing any risk of harm to the children from the proposed relocation); and In re Marriage of Horner, 151 Wash. 2d 884, 93 P.3d 124 (2004) (state statute created rebuttable presumption in favor of custodial parent's decision to move). See also Minn. Stat. Ann. 518.175 (2004) (implicit presumption that removal is allowed); Tenn. Code Ann. 36-6-108 (2004) (statutory preference in relocation cases in favor of parent who spends more time with the child); Wash. Rev. Code Ann. 26.09.520 (2004) (rebuttable presumption in favor of custodial parent's relocation); Wis. Stat. Ann. 767.327 (2004) (presumption that custodial parent's decisions are in best interests of child, including decision to relocate).
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