Friday, March 17, 2006

Case Law Development: Court May Not Require Relocating Parent to Prove Advantage of Move

Mother, who had primary custody of daughter, sought to relocate with her new husband to their hometown in Oklahoma.  The Arkansas Court of Appeals reversed a trial court's denial of her relocation motion on the basis that, while the trial court had recognized that there exists a presumption in favor of relocation by custodial parents, the court essentially placed the burden on the Mother to prove that the move constituted an advantage to the child. The trial court had based its decision to deny relocation in large part on the uncertainties of the child's relationship with her extended family in Oklahoma and the uncertainty of the quality of schooling there.  The court of appeals noted that the trial court's determination that relocation should be denied because mother would be moving child from "a healthy, stable environment to which she was adjusted to an environment that is unknown" was implicitely shifting the burden to Mother to prove that "the move would provide an equally or more stable situation for the child."   The court noted that prior caselaw did not support the trial court's assessment that "any "marginal" differences between the quality of the sending and receiving schools shall constitute a basis for denial of a custodial parent's relocation request in the absence of evidence that the difference is so significant as to cause the court to conclude that attendance at the new school will be detrimental to the interests of the child."

Benedix v. Romeo, 2006 Ark. App. LEXIS 218  (March 15, 2006)
Opinion on the web (last visited March 17, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_23.html

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