concurring. I agree with the result obtained in the prevailing opinion in this case. I also agree with Judge Bird’s concurring view that our decision in Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000), was incorrectly decided and should be overruled. I write separately only to address misconceptions concerning our holding in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994).
Staab holds that, where the custodial parent seeks to relocate with the parties’ children to a place so geographically distant as to render weekly visitation impossible or impractical, and where the noncustodial parent objects to the move, the custodial parent has the burden of first demonstrating that some real advantage will result to the new family unit from the move. Where the custodial parent meets this threshold burden, the court should then consider a number of factors in order to accommodate the compelling interests of all the family members, including (1) the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children; (2) the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the noncustodial parent’s motives in resisting the removal; and (5) whether, if removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parent relationship with the noncustodial parent. Id. at 134, 868 S.W.2d at 520.
Judge Bird’s concurring opinion notes that the New Jersey caselaw that we found persuasive in Staab was subsequently modified by the New Jersey Supreme Court. This is interesting, as a matter of historical fact, but has no significance to our analysis. In Staab, we did not adopt New Jersey’s law of child custody, but were merely persuaded by the rationale applied in a single case from that jurisdiction. We still find that rationale to be sound.
Judge Bird also argues in favor of a presumption in favor of parental location, and asserts that Staab was a departure from prior Arkansas law upholding such a presumption. This is simply wrong. By its terms, Staab is limited to cases where the planned relocation is to a place so geographically distant as to render weekly visitation impossible or impractical. In contrast, the case cited by Judge Bird for the supposed “relocation presumption” in Arkansas law did not involve such circumstances. To the contrary, the supreme court in Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960), specifically noted that:
In our earlier cases the objection to an application of this kind has usually sprung from the loss of visitation rights that the protesting parent would suffer upon the child’s departure. That point is not involved here, for the proposed home in Oklahoma is not so far from Fort Smith as to interfere with the appellee’s decreed right to have his daughter with him every other week end.
Id. at 768, 332 S.W.2d at 496.1
Perhaps the most fundamental misconception concerning Staab is the notion that it was intended to make parental relocation more difficult than had previously been the case. In fact, Staab was intended simply to regularize the law of parental relocation and render it less arbitrary. Prior to Staab, we had been presented with relocation cases demonstrating that some chancellors were unshakably opposed to permitting relocation and would deny virtually every request to do so that came before them. Given the enormous degree of deference that is rightly afforded to chancellor’s decisions in cases involving child custody and the absence of any established framework for analyzing the often-competing considerations involved in relocation cases, we often found these cases to be especially difficult to resolve on a reasoned basis. Staab was intended to do no more than provide the framework for analysis that was previously lacking.
It has been rightly said that rules involving mechanical tests and modes of analysis are particularly ill-suited to cases involving child custody. Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989). In the final analysis, all considerations must yield to the overriding concern for the best interest of the child that is the fundamental concern of the law of child custody, see id., and any test or list of factors enunciated with respect to this law should be. seen simply as flexible devices intended to aid the court in determining what the best interest of the child may be. In this context, I believe that it is regrettable some Arkansas jurists have tended to overemphasize Staab’s requirement that the parent desiring to relocate to a distant site must meet the preliminary burden of showing a real advantage to the new family unit.2 To my mind, this is a minimal burden to show an advantage that, although real, need not be measurable and that may embrace the entire realm of human activity. Economic, social, spiritual, even aesthetic factors may provide a real advantage. Nor need that advantage be exclusively, or even primarily, extended to the child, or to the custodial parent, or to any other member of the new family unit. A rising tide lifts all boats, and an advantage to one member of the new family unit may indeed benefit, albeit indirectly, the entire family. It should be emphasized, too, that the list of factors enunciated in Staab is merely a framework for analysis, not a multi-part test consisting of elements that must all be satisfied or that are entitled to equal weight. Nor are the factors listed in Staab exclusive; in any individual case there may be other factors that also merit consideration. For example, in the case of a child suffering from a serious medical condition, ready access to appropriate health care facilities may be an overriding concern. Used properly, the framework enunciated in Staab provides a convenient starting point for analysis while retaining all the flexibility necessary to ensure that the best interests of the child are identified and protected in these difficult cases.
Nor do the cases cited in Ising establish the supposed presumption in favor of permitting relocation. At best, these cases can be seen as standing for the proposition that permitting a custodial parent to move to another state “would not be beyond the power of the court.” Thompson v. Thompson, 213 Ark. 595, 599, 212 S.W.2d 8, 10 (1948); see also Antonacci v. Antonacci, 222 Ark. 881, 263 S.W.2d 484 (1954), horn which Judge Bird’s reference to custodial parents as “prisoners” in Arkansas is presumably drawn, but which in Antonacci was in reference to a unique circumstance in which the custodial parent had actually established a home in California following the divorce without objection; had employment in California; but briefly returned to Arkansas, whereupon a proceeding for change of custody was instituted and she was restrained from returning with the child to their established home in California. The Antonacci court affirmed the trial court’s order permitting her to return to California with the child in an opinion that makes no reference to any supposed presumption in favor of relocation, and that is wholly consistent with the principles enunciated in Staab. The remaining cases cited in Ising, Nutt v. Nutt, 214 Ark. 24, 214 S.W.2d 366 (1948), and Langston v. Horton, 229 Ark. 708, 317 S.W.2d 821 (1958), are squarely based on the long-abandoned “tender years” doctrine, a presumption that custody of young children should almost invariably be vested in the mother; e.g., “In view of the tender years of the child, we think the custody should be awarded to the mother,” Nutt, 214 Ark. at 33, 214 S.W.2d at 371; compare Langston, 229 Ark. at 710, 317 S.W.d at 822, where the court opined that “the children should be placed in their mother’s care rather than remaining in a home where there is no woman to look after their needs.”
See, e.g., Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000), and the trial courts’ decisions in Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001), and in Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001).