dissenting.
|2nI agree with Chief Justice Hannah that the Hollandsworth decision established a presumption in favor of the custodial parent based on that parent’s right to travel. See Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003). We explicitly said in Hollandsworth that we did not want to hold a custodial parent prisoner in this state. At the same time, we were clear in Hollandsworth that this was not a decision on the ultimate issue of what was in the best interest of the child. Best interest of the children still had to be determined by the court based on the proof presented. The presumption in favor of relocation was merely a starting point.
To drive that point home, we said, “The noncustodial parent should have the burden to rebut the relocation presumption.” Hollandsworth, 353 Ark. at 485, 109 S.W.3d at 663. We then added that the polestar in making a relocation decision is best interest of the child, and we listed the factors for the court to consider.
What the parties were waiving or “contracting away” in this case was not the decision of what was in the best interest of the children but rather which party would have the burden of proof in court in the event of a proposed relocation. Under the Property Settlement Agreement, Amber Stills would. That is a far cry from contracting away the ultimate issue of what is in the best interest of the children. That issue still remains to be decided by the court.
Which party has the burden of proof to justify relocation in court before the move seems a reasonable item of negotiation for the parties. Clearly, Amber and David Stills |21thought so, and they agreed that Amber should have the burden of justifying relocation and why that was in the children’s best interest. Under Hollands-worth, this court said that David Stills would have this burden. But again, the parties agreed in this case that Amber must make her ease in court, and I see nothing untoward in such an agreement. Nor do I see how this is a usurpation of the court’s role.
This court and the court of appeals have countenanced various contractual agreements by parents in the past and have not considered them to invade the province of the court, even when they affected child support and the child’s upbringing. For example, in Van Camp v. Van Camp, 333 Ark. 320, 969 S.W.2d 184 (1998), we enforced a father’s agreement to provide child support after the age of majority even though Arkansas law provided otherwise. In a second case, the court of appeals upheld the parents’ agreement to raise their children in a particular faith— Protestantism. See Rownak v. Rownak, 103 Ark.App. 258, 288 S.W.3d 672 (2008).
This court and other jurisdictions have enforced disparate provisions that waived various presumptions. See, e.g., Wedgeworth v. State, 374 Ark. 373, 288 S.W.3d 234 (2008) (A criminal defendant may waive his constitutional right to remain silent.); Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007) (The constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial); Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007) (In pleading guilty, a criminal defendant affirmatively answered the following question: “Now, do you understand that by entering a plea of guilty you do indeed waive your ^^Constitutional rights?”); see also In re Michael John Reise, 146 Wash.App. 772, 192 P.3d 949 (2008) (A defendant who pleads guilty specifically waives the presumption of innocence, the right to remain silent, and the right to force the State to prove guilt beyond a reasonable doubt.); Uribe v. Merchants Bank of New York, 91 N.Y.2d 336, 670 N.Y.S.2d 393, 693 N.E.2d 740 (1998) (interpreting the term “valuable papers” and enforcing an exculpatory provision with the following language: “Renters expressly waive every presumption of law that loss shall have occurred through Bank’s negligence.”); Karkaria v. Karkaria, 405 Pa.Super. 176, 592 A.2d 64 (1991) (an antenuptial agreement “waiv[ing] all presumption of fraud,” rights to equitable distribution, alimony, alimony pendente lite, counsel fees or expenses under the Divorce Code enforceable unless proponent spouse failed to make a full and fan-disclosure of his or her financial worth at the time the agreement was executed).
Why a contract provision requiring Amber to support her relocation decision by proof violates some fundamental article of faith is beyond me. Rather, it appears the parties simply agreed, as part of then-negotiations, that Amber would have to make her case for relocation and that relocation was in the children’s best interest before the court before leaving the state.
I find nothing wrong with this and would reverse the trial court on this basis.
HANNAH, C.J., joins this dissent.