Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, November 11, 2005

Case Law Development: Grandparents as Third Party Beneficiary to Custody Agreement; Relocation Presumptions

Husband and Wife agreed in the settlement of their divorce, incorporated into the divorce decree, that the couple would have joint custody with primary custody vested in Mother.  The agreement also provided that paternal grandmother would continue to babysit the child. Despite the primary custody provision of the decree, the couple shared custody of child roughly equally. 

Four years later, when Mother indicated her intent to relocate, Father and Mother each filed petitions requesting sole custody of their daughter. The circuit court characterized Grandmother as a third-party beneficiary of the divorce decree, found that she was a necessary party to the litigation, and allowed her to intervene.  The court further ruled that she had the right to enforce the provision of the settlement agreement stating that she would continue to babysit her granddaughter.

Arkansas law provides a presumption in favor of relocation of a custodial parent with primary custody. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003).  The custodial parent does not have the obligation to prove a real advantage to the child and relocation alone is not a material change in circumstances sufficient to justify a change in custody.  The trial court, however, found that this rule was inapplicable, based on the parent's pattern of sharing custody.  The trial court ordered that the parent's informal agreement to share custody continue while Mother remained close enough to continue the agreement. However, the court ordered that, if Mother relocated in a way that would make the current arrangement unworkable, the decree would be modified to award custody of child to Father.

The Arkansas Court of Appeals reversed. As to Grandmother's rights, the appellate court found that the fact that Grandmother was mentioned in the divorce decree gave her no rights, either under contract or domestic-relations law.  "Parents cannot elevate grandparents into a quasi-parental role by agreeing to name the grandparents as babysitters." Rather, the court noted that Grandmother's rights, if any, needed to be determined under provisions of the Arkansas Grandparent visitation statutes. The court held that she failed to satisfy the statutory requirements pertaining to grandparent visitation, and found that the trial court committed reversible error when it allowed her to intervene as a third-party plaintiff.

The court of appeals also found reversible error in the trial court's rejection of the presumption in favor of relocation.  The appellate court noted that the parent had never formally sought court modification of the custody order, which had given Mother primary custody.  "The parties cannot modify the divorce decree without permission from the court. Absent a subsequent modification, the language in the divorce decree is controlling. Thus, the circuit court had no basis for holding that the terms of the divorce decree had essentially been nullified by the parties' conduct." Thus, the Hollandsworth presumption should have been applied.  The appellate court found that the trial court "ordered a prospective change of custody, citing relocation as the triggering event, thereby finding that appellant's relocation would constitute a material change in circumstances to justify a change in circumstances. Such a finding violates our supreme court's holding that relocation, by itself, does not constitute a material change in circumstances."

Hurtt v. Hurtt, 2005 Ark. App. LEXIS 772 (November 2, 2005)
Opinion on the web at (last visited November 10, 2005 bgf)

Custody (parenting plans), Visitation | Permalink