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The Conflict Between Relocation and Child Custody

Contributed by Bailey Geller.

Once child custody has been determined by an Arkansas Court, it can be difficult to modify it. Arkansas Courts will not modify a child custody order absent a showing of changed conditions which demonstrate that a modification of the decree will be in the best interests of the child. Arkansas Courts will not look at facts that arose during the prior order, however, if there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered, it can be permissible. This burden rests on the party seeking modification to show a material change in circumstances.

Arkansas has no moratorium restricting how soon after a decree of child custody a modification can be requested. The question of what counts as a changed condition arises when a custodial parent of the child wishes to relocate. Although it is true a custodial parent has the right to travel and relocate, that does not automatically mean the parent has the right to do so with the child. As foreshadowed, in a situation with sole custodial rights, Arkansas Courts favor relocation for the sole custodial parent, however, in a situation with joint custodial rights, relocation could be detrimental to the custody decree.

Arkansas Courts adopt the approach of creating a rebuttable presumption in favor of relocation for the custodial parent with sole or primary custody, with the noncustodial parent having to rebut the presumption. Arkansas Courts do not view relocation alone as a material change in circumstances justifying a modification of child custody. The best interests of the child prevail, and the following factors are often considered:

  1. The reason for relocation;
  2. the educational, health, and leisure opportunities available in the new location;
  3. a visitation and communication schedule for the noncustodial parent;
  4. the effect of the move on extended family relationships in the new location as well as in  Arkansas; and
  5. the child’s preference, taking into account the child’s age and maturity, as well as the reasons given by the child for the preference.

There is one major caveatwhen there is joint custody, instead of sole or primary, there is no longer a presumption in favor of relocation, and the normal standard requiring a material change of circumstances affecting the best interests of the child is required for modification. Namely, you may lose your custodial rights if you share custody of a child with another individual and you choose to move.

Are you considering moving after a child custody decree? Or do you believe your child custody decree should be modified upon the sole custodial parent wishing to move? Do you share joint custody and need assistance showing a material change of circumstances, or a lack of, because of relocation? Please reach out to our office and schedule an appointment to ensure you will not lose rights to your child or learn how you may be able to gain them.

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