When a divorced parent wants to move away with the children in Arkansas

The test applied by the court in a move-away case depends on whether the parent who wants to move shares joint custody with the other parent or is the sole or primary custodial parent.

Divorce with children is difficult under the best of circumstances. Whether the divorcing parents are able to negotiate an agreement about how custody and visitation will be handled or the issue goes before a judge for decision, the parents must find a way to handle co-parenting between two new households.

But even after an adjustment period, it is not unusual for a divorced parent with children to find a reason to move out of state such as a job opportunity, a new relationship or a desire to live closer to extended family. Naturally, the other parent will often object to such a move because it will likely have an impact on how much time the nonmoving parent sees the child due to the longer distance.

Arkansas case law (the rules developed by judges in their written opinions) is complicated as it concerns this legal issue. The standards the court applies in a move-away dispute depend on whether the parent who wants to move has primary or full custody of the child.

Relocation when one parent has primary custody

When a parent with sole or primary custody wants to move away with a child, the Arkansas court applies a rebuttable presumption that the parent can move without needing to show that the move would bring an advantage to the child and to him or herself.

To rebut this presumption, the parent opposing the move has the burden of proving that the move would not be in the best interest of the child, considering:

  • The purpose of the proposed relocation
  • Opportunities for enhancing the child's education, health and leisure existing in the proposed new location
  • The schedule for visitation and communication with the noncustodial parent
  • The likely impact on relationships with extended family both in Arkansas and the proposed new home
  • The child's wishes, considering his or her reasoning, maturity and age

Relocation when the parents have joint custody

If the two parents share joint custody, there is no presumption that the parent who wants to move away may do so without showing that it would be an advantage. The court sees the two parental relationships as equally important so no presumption should be given to one over the other. In this arrangement, the court in essence applies the standards it would apply in a request for a change of custody, namely whether there been a "material change in circumstances" since the divorce that would make a change in custody in the child's best interest.

This introduces a sometimes complicated legal and factual issue. Anyone facing an issue of a proposed relocation with a minor child should speak with experienced legal counsel about the unique family situation and how the law is likely to apply.

The lawyers at Hatfield Harris, PLLC, in Rogers represent parents in northwest Arkansas in their efforts to either move away with children or oppose relocation efforts.