dissenting.
I respectfully dissent. The presumption declared in Hollandsworth was a presumption of fact “in favor of relocation for custodial parents with primary custody.” Hollandsworth, 353 Ark. 470, 476, 109 S.W.3d 653, 657 (2003). In other words, the custodial parent enjoys a presumption in favor of relocation. The presumption did not address the best interest of the child. The presumption is based on the custodial parent’s right to travel and was intended to assist in resolving conflicts between parents in relocation cases.
When the noncustodial parent objects to the custodial parent’s relocation, a conflict inevitably emerges between the custodial parent, who has the right to travel and to relocate and desires to take the children with him or her, and the noncustodial parent, who wishes to maintain a close relationship with the children and has misgivings that that bond will be lost.
I, Hollandsworth, 353 Ark. at 476, 109 S.W.3d at 657. In Hollandsworth, this court addressed the impact on the custodial parent and his or her right to travel caused by the court of appeals’s presumption found in Hickmon v. Hickmon, 70 Ark.App. 438, 445, 19 S.W.3d 624, 629 (2000), that “relocation of the custodial parent and the child is detrimental to the best interests of the child.”1 Hollandsworth, 353 Ark. at 484, 109 S.W.3d at 663. In response, this court held in Hollands-worth that “relocation of a primary custodian and his or her children alone is not a material change in circumstance.”2 Hollandsworth, 353 Ark. at 476, 109 S.W.3d at 657. The majority errantly declares that the presumption is one of law, the establishment of a legal burden of proof, and “is not a ‘right’ that may be claimed by one party or another, nor can it be altered or waived by a party.” The burden of proof is not set by the presumption. As already discussed, the presumption is a factual presumption in favor of the custodial parent based on the right to travel.
The burden of proof in deciding child custody cases is unaffected by Hollands-worth. In Hollandsworth, we noted that in Hickmon, the court of appeals, in a relocation case, had errantly “removed the burden from the noncustodial parent to prove that there has been a material 117change in circumstance justifying a change in custody.”3 Hollandsworth, 353 Ark. at 484, 109 S.W.3d at 662. That was never in the province of the court of appeals to do because it is bound by our precedent. Our previously noted statement in Hollandsworth that the noncustodial parent bore the burden of proving a material change in circumstance that justifies a change of custody, was a statement of existing law and precedent. Under this court’s precedent, the person seeking modification of child custody has always borne the burden of proving that a material change in circumstance justifies a change of custody based on the best interest of the child. See, e.g., Lloyd v. Butts, 343 Ark. 620, 625, 37 S.W.3d 603, 606 (2001); Roberts v. Roberts, 226 Ark. 194, 196, 288 S.W.2d 948, 950 (1956); Blake v. Smith, 209 Ark. 304, 307, 190 S.W.2d 455, 456 (1945).
Nothing about a presumption that relocation is in the best interest of the children would significantly reduce the number of the court hearings required in custody proceedings. It should be noted that any relocation inevitably requires new orders on visitation, contact, and other custody issues.
I also note that the factual presumption declared in Hollandsworth is likely redundant. Once custody has been established, stability and continuity dictate that it remain in place unless a material change in circumstance is shown that reveals a change in custody is in the best interest of the child. See Lewellyn v. Leivellyn, 351 Ark. 346, 355, 93 S.W.3d 681, 6871 (2002); Digby v. Digby, 263 Ark. 813, 817, 567 S.W.2d 290, 292 (1978). This law, in effect, provides a presumption that custody will remain as it is until a material change in circumstance that justifies a change in custody based on the best interest of the child, is shown. In other words, unless the noncustodial parent shows a material change in circumstance that justifies a change in custody, based on the best interest of the child, no modification based on relocation will be considered. The factual presumption declared in Hollandsworth basically provides the same benefit the custodial parent had under this court’s pri- or precedent.
Further, there cannot be a presumption that relocation is in the best interest of the child because best interest cannot be determined presumptively.4 When the custodial parent and noncustodial parent are in disagreement, the determination of what is in the best interest of the child requires action by the trial judge who is to “utilize to the fullest extent of his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children.” Alphin v. Alphin, 364 Ark. 332, 336, 219 S.W.3d 160, 162 (2005). A presumption for or against relocation bypasses the best interest analysis that is the very purpose of the proceeding: to provide a judicial determination of what is in the child’s best interest.
The Hollandsworth presumption may assist in resolving conflicts between parents, but the presumption will not trump best interest of the child. The unyielding consideration in custody cases is the welfare of the child. Brown v. Cleveland, 328 Ark. 73, 77, 940 S.W.2d 876, 878 (1997); Stephenson v. Stephenson, 237 Ark. 724, 726, 375 S.W.2d 659, 660 (1964). All considerations other than best interest of the child are secondary. Alphin, 364 Ark. at 340, 219 S.W.3d at 165 (citing Hamilton v. Barrett, 337 Ark. 460, 466, 989 S.W.2d 520, 523 (1999)); Digby, 263 Ark. at 816, 567 S.W.2d at 292. The desires of the parents are secondary. Johnson v. Arledge, 258 Ark. 608, 613, 527 S.W.2d 917, 920 (1975). Thus, if a material change in circumstance is shown, requiring an analysis of what is in the best interest of the child, then the custodial parent’s right to travel will not prevail and decide the issue.
I further note that in the Property Settlement, Custody and Support Agreement, the parties attempted to replace the “so-called presumption in favor of a move ... set forth in Hollandsworth.” They were certainly free to do so. The presumption of fact arises from the custodial parent’s right to travel, which arises from a person’s liberty interest. Kent v. Dulles, 357 U.S. 116, 127, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). I agree with Justice Brown that the Hollandsworth presumption is based on the right to travel and may be waived. Even fundamental constitutional rights are subject to waiver. See Eubanks v. Humphrey, 334 Ark. 21, 28, 972 S.W.2d 234, 237 (1998).
The circuit court erred in finding the presumption that relocation of custodial parents is in the best interest of the children and erred in finding the presumption could not be waived. This case should be reversed and remanded for the circuit court to begin its analysis anew.
BROWN and SHEFFIELD, JJ„ join.
. The idea that a real advantage must be shown before a move would be allowed, presuming any move is detrimental, is found in Staab v. Hurst, 44 Ark.App. 128, 134, 868 S.W.2d 517, 520(1994).
. Where the custodial parent relocates does not matter so long as nothing arising from the move constitutes a material change in circumstance that justifies a change in the custody order based on the best interest of the child.
.Under Staab, the custodial parent bore the burden of "demonstrating that some real advantage will result to the new family unit from the move.” Hollandsworth, 353 Ark. at 483, 109 S.W.3d at 663 (quoting Staab, 44 Ark.App. at 134, 868 S.W.2d at 520).
. A presumption signifies "that which may be assumed without proof or taken for granted.” Old Republic Ins. Co. v. Martin, 229 Ark. 1065, 1066, 320 S.W.2d 266, 267 (1959) (quoting Gray v. Gray, 199 Ark. 152, 155, 133 S.W.2d 874, 876 (1939)).