Americans are among the most transient people in the world[1]. We move for all kinds of reasons, including for work or education and family-related issues, among many others. But if you have primary custody of your children, moving can severely disrupt their visitation with the non-custodial parent. In some cases, this could cause the court to order a modification of your custody agreement. Before you move, there are several things you should consider first.
The first thing you should do is review your existing divorce decree and visitation agreement. Those documents often cover what obligation the custodial parent has to the non-custodial parent when considering a move. No two families are the same, so the divorce and the visitation agreements are usually tailored to the concerns and needs of the parties. Yours may say something about a requirement to notify the other party before a move, or it may not say anything at all.
Divorcing couples also typically use standard visitation agreements, which can vary depending on where the agreement originated. For example, the standard visitation used in Washington County states that each parent is prohibited from moving the children out of Arkansas without permission from the Court or written consent of both parents[2]. However, the standard visitation used in Benton County is silent as to the obligations of a parent who wishes to move the children[3]. The inference that can be drawn from this silence is that both parents are required to comply with the terms of the visitation agreement, and if one parent cannot comply with its terms then they should seek to modify the agreement.
The standard visitation agreements of both Washington and Benton Counties state that it is the duty of the non-custodial parent to provide transportation for visitations. However, a move by the custodial parent may shift that duty away from the non-custodial parent and onto the custodial parent. But it is important to reemphasize here that some divorce decrees or visitation agreements may have language that specifically addresses the issue of moving and transportation.
If the non-custodial parent refuses to consent to the custodial parent moving with the children, then the custodial parent may need to seek a modification of the agreement by the court. States throughout the country deal with this issue in varying ways. Some States have imposed a presumption against a move, and in those States the custodial parent must show a legitimate and compelling reason for moving. Meanwhile, other States assume a presumption in favor of the move, placing the burden on the non-custodial parent to show why the custodial parent should not be able to move with the children. And still other States apply a “best-interest analysis,” intended to determine whether a move will be either beneficial or detrimental to the well-being of the children.
Historically, courts in Arkansas had imposed the presumption against the move. A custodial parent wishing to move with his or her children was first required to show that moving with the children provided a “real advantage” to themselves and their children[4]. After meeting that initial burden, the court then considered a series of factors in deciding whether the move was in the best interest of the child, including whether the move might improve the general quality of life for both the custodial parent and the children; whether the move was being made in good faith or to frustrate the relationship between the children and the non-custodial parent; whether the custodial parent is likely to comply with the new visitation agreement; whether the non-custodial parent is opposed to the move for genuine reasons or to frustrate the custodial parent; and to what extent the move will inhibit future visitations[5].
But by statute, Arkansas courts always focus primarily on the best interests of the child when considering any issue of child custody[6]. So in a landmark case on this issue in 2003, the Arkansas Supreme Court decided it would better serve the children concerned to recognize that moving does not always constitute a material change in circumstances requiring a modification of custody[7]. In doing so, Arkansas courts rejected the “real advantage” analysis, and instead adopted a presumption favoring relocation of the custodial parent with the children[8]. Therefore, the burden is now on the non-custodial parent to rebut that presumption by showing that the move will truly present a material change in circumstances. In other words, the custodial parent is entitled to move unless the non-custodial parent can show that the move will be detrimental to his or her relationship with the children.
Yet the court is still obligated to place the best interest of the child foremost in consideration. To that end, there are five factors courts weigh in making a best interest determination, which are the reason for the move; the educational, health, and leisure opportunities available for the custodial parent and the children at the new location; the effect of the visitation schedule for the noncustodial parent; the effect of the move on the extended family relationships in both the new location as well as the current location; and, the preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference[9].
So in a society where people move as frequently as we tend to do, concerns about child custody are common. But the focus always is and always should be on what is the best interest of the children. A little cooperation between the parents, as challenging as that can sometimes be, always goes a long way to accomplishing that goal.
[1] https://www.theatlantic.com/business/archive/2016/10/us-geographic-mobility/504968/
[2] https://www.co.washington.ar.us/Home/ShowDocument?id=10715
[3] http://www.bentoncountyar.gov/Media/Document/CircuitClerk/standard_visitation_schedule.pdf
[4] Staab v. Hurst, 44 Ark. App. 128 (1994)
[5] Id.
[6] A.C.A. § 9-13-101
[7] Hollandsworth v. Knyzewski, 353 Ark. 479 (2003)
[8] Id.
[9] Id.