concurring. I agree with the majority that the chancellor’s denial of appellant’s petition to relocate with her children to Tennessee and the change of custody of the children to the appellee should be reversed. I also agree generally with much of the rationale expressed in the majority opinion and the concurring opinion of Judge Griffen. However, I write separately because I would go further and modify our decision in Staab v. Hurst, 44 Ark. App.128, 868 S.W.2d 517 (1994), and I would overrule, rather than attempt to distinguish, this court’s decision in Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). Hickmon, a case that was neither reheard by this court nor reviewed by our supreme court, is inconsistent with our established precedent, and our established precedent itself merits revisiting, as the law in this area has not and cannot remain static; yet, this court has chosen to apply a rationale that has clearly not adequately achieved its purpose throughout the nation. Our precedent has essentially placed custodial parents in the untenable position of being prisoners in the State of Arkansas due to the unfortunate circumstances of a divorce, and the situation has worsened as a result of the misapplication of our precedent in Hickmon.
Analysis of Staab v. Hurst
In 1994, this court, in deciding Staab v. Hurst, supra, adopted the criteria set forth in D’Onofrio v. D’Onofrio, 365 A.2d 27, aff'd, 365 A.2d 716 (N.J. Super. Ct. App. Div. 1976), as the criteria to be applied in Arkansas in determining whether the custodial parent should be permitted to relocate with the children to a place so geographically distant that weekly visitation with the noncustodial parent is not practical. In D’Onofrio, the New Jersey court noted that after parents divorce, their children belong to a different family unit consisting only of the children and the custodial parent, and that what is advantageous to this new family unit as a whole, to each of its members individually and the way they relate to each other and function together, is obviously in the best interests of the children. Consequently, the criteria promulgated by the New Jersey court in D’Onofrio, and adopted by this court in Staab, allowed for consideration of more than just the children’s best interests in deciding whether to permit a custodial parent to relocate. In recognition of the fact that “the day-to-day routine of the children, especially young ones, and the quality of their environment and their general style of life are that which are provided by the custodial parent,” the D’Onofrio court allowed for consideration of the interests of the custodial parent along with the interests of the children that made up the new family unit. Id. at 29.
The D’Onofrio court concluded, and this court in Staab found the D’Onofrio conclusions to be sound, that in cases where the custodial parent can initially demonstrate that a “real advantage” to herself or himself and the children will result from their relocation to a distant place, referred to in Staab, supra, as the custodial parent’s “threshold burden,” then the court must consider the following factors in order to accommodate the compelling interests of all of the family members: (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 custodial parent’s motives 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 the removal is allowed, there will be a realistic opportunity for visitation in lieu of the weekly pattern that can provide an adequate basis for preserving and fostering the parent relationship with the noncustodial parent. D’Onofrio, 365 A.2d at 30.
Although our opinion in Staab cited Cooper v. Cooper, 491 A.2d 606 (N.J. 1984), as being in accord with the D’Onofrio decision, the Staab opinion does not mention that in Cooper, the New Jersey Supreme Court, while recognizing D’Onofrio as the leading case in the area of parental relocation, modified D’Onofrio’s requisite “threshold burden” of the custodial parent, holding that “to establish sufficient cause for removal, the custodial parent initially must show that there is a real advantage to that parent in the move and that the move is not inimical to the best interests of the children.” Cooper, 491 A.2d at 613. Thus, while the custodial parent’s threshold burden in D’Onofrio was to demonstrate a “real advantage to herself and the children,” under Cooper, the threshold burden is met by merely demonstrating a “real advantage to the parent and that the move is not inimical to the best interests of the children,” a significant modification ignored by the Staab court, even though Cooper preceded our Staab decision by ten years. Id. The “real advantage” contemplated by the Cooper court “need not be a substantial advantage but one based on a sincere and genuine desire of the custodial parent to move and a sensible good faith reason for the move.” Id. Addressing the inquiry into the effect on the child, the court stated that “[t]o establish that the move is not inimical to the best interests of the children, the moving party must show that no detriment to the children will result from the move.” Id. The Cooper court-merged the five D’Onofrio criteria that we adopted in Staab into three inquiries: (1) the prospective advantages of the move, including its capacity for maintaining or improving the general quality of life of both the custodial parent and the children; (2) the integrity of the custodial parent’s motives in seeking to move, as well as the noncustodial parent’s motives in seeking to restrain the move; (3) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. Id.
The New Jersey Supreme Court addressed the parental relocation yet again in Holder v. Polanski, 544 A.2d 852 (N.J. 1988). Adopting almost a presumption of entitlement to relocation, the Holder court rejected its former requirement of a “real advantage” to the parent, and held that “any sincere, good-faith reason will suffice” and that a custodial parent may move with the children “as long as the move does not interfere with the best interests of the children or the visitation rights of the non-custodial parent.” Id. at 855-56. Though still recognizing the importance of the quality of the noncustodial parent’s visitation, the court instructed that the important inquiry “should not be on whether the children or the custodial parent will benefit from the move, but on whether the children will suffer from it. Motives are relevant, but if the custodial parent is acting in good faith and not to frustrate the noncustodial parent’s visitation rights, that should suffice.” Id. at 857. The court further opined that “[s]hort of an adverse effect on the noncustodial parent’s visitation rights or other aspects of the child’s best interests, the custodial parent should enjoy the same freedom of movement as the noncustodial parent.” Id. at 856. Recognizing that potential adverse effects on visitation could in some circumstances be adequately mitigated, the court stated that “ [maintenance of a reasonable visitation schedule by the noncustodial parent remains a critical concern, but in our mobile society, it may be possible to honor that schedule and still recognize the right of the custodial parent to move.” Id. at 857. These substantial modifications by the Holder court, though occurring six years prior to Staab, were not addressed or acknowledged by the Staab court.
Finally, in 2001, the New Jersey Supreme Court again visited this issue, further defining its Holder decision in Baures v. Lewis, 770 A.2d 214 (N.J. 2001). After setting forth an extensive list of criteria that the trial court should consider in determining good faith and whether the move would be detrimental to the child’s best interests, the Baures court emphasized that a mere change, even a reduction, in the noncustodial parent’s visitation is not an independent basis on which to deny the removal. The Baures court recognized that under Holder, “it is not any effect on visitation, but an adverse effect that is pivotal. An adverse effect is not a mere change or even a lessening of visitation, it is a change in visitation that will not allow the non-custodial parent to maintain his or her relationship with the child.” Id. at 227. A mere change, even a reduction, in the noncustodial parent’s visitation is not an independent basis on which to deny removal, the Baures court opined, rather:
[i]t is one important consideration relevant to the question of whether a child’s interest will be impaired, although not the only one. It is not the alteration in the visitation schedule that is the focus of the inquiry. Indeed alterations in the visitation scheme when one party moves are inevitable and acceptable. If that were not the case, removal could never occur and what Cooper and Holder attempted to achieve would be illusory.
Id. at 230. The court further held that it was the noncustodial parent’s burden to produce evidence, “not just that the visitation will change, but that the change will negatively affect the child.” Id. at 231.
Although our court adopted the D’Onofrio criteria in Staab, supra, we failed to acknowledge the substantial modifications that D’Onofrio had undergone by the New Jersey Supreme Court. This court acknowledged the relevance of Cooper in Staab, but failed to address the modifications of Cooper and Holder, and offered no explanation for rejecting the modifications in favor of the original D’Onofrio criteria. While this court is free to select all, some, or none of another jurisdiction’s law, when we look to other jurisdictions, it is usually because the issue presented is one of first impression or one in which our courts have not fully developed the existing law. When Staab was decided in 1994, our supreme court had already addressed the issue of custodial parent relocation decades previously. Ising v. Ward, 231 Ark. 767, 332 S.W.2d 495 (1960). Staab gave passing credence to this supreme court guidance, noting that our supreme court had recognized in Ising that the custodial parent is “ordinarily entitled to move to another state and to take the child to the new domicile.” Staab, 44 Ark. App. at 132, 868 S.W.2d at 519 (quoting Ising, 231 Ark. at 767, 332 S.W.2d at 495). While the Staab court determined that the standard “must be more specific and instructive to address relocation disputes,” the court did not merely more clearly define the standard, the court changed the standard. Id. at 133, 868 S.W.2d at 519. No longer presuming that the custodial parent is entitled to relocate with the child as our supreme court had intimated, the Staab court instead chose to adopt the law of a New Jersey lower court; law that had subsequently been modified by their supreme court in Cooper and Holder.
Thus, while acknowledging our supreme court’s opinion that the custodial parent is ordinarily entitled to move and the court’s disdain for imprisoning custodial parents in this state, the Staab court nevertheless adopted criteria that, even for the state that initially adopted the criteria, did not survive without substantial modification. The rationale of both the Cooper and the Holder court was available for review by this court when Staab was decided in 1994. I submit that this court erred in its adoption of the D’Onofrio threshold burden, and that the Holder burden more closely follows our supreme court’s position.
Our society is developing at a greatly accelerated pace, and technology has advanced multiple fold since our supreme court last addressed the right of a custodial parent to relocate with the children. Despite the lack of our current technology and conveniences, such as e-mail, cellular phones, and affordable airfare, our supreme court in 1964 chose freedom for the custodial parent, even though such freedom may result in less contact between the noncustodial parent and the child. Certainly today, the burden to maintain visitation is greatly reduced, yet we have increased the burden that the custodial parent must meet in order to enjoy the same freedom of choice that the noncustodial parent takes for granted.
I advocate a return to the established law, before this court began down an erroneous path beginning with Staab, and hopefully ending with the modification of Staab, to allow for the adoption of a presumption in favor of the custodial parent’s right to relocate with the children, absent a finding that such relocation would be detrimental to the child.
Analysis of Hickmon
Unlike the majority and Judge Griffen, I believe that reversal of the case at bar would require the overruling of Hickmon, supra. The Hickmon court, in affirming the denial of the mother’s relocation, stated that:
Obviously, the move would have significant advantages for [the mother]; she would be with her husband and she would be away from her ex-husband, whom she perceives as an antagonist in her life. Although the evidence was somewhat sparse in this regard, she also would apparently be moving to a better-paying job, requiring fewer hours, and the flexibility to work at home. However, it is not apparent that there would be any “real advantage” for [the child].
Id. at 445, 19 S.W.3d at 629.
With Staab, this court adopted an erroneous approach to parental relocation issues; with Hickmon, this court further erred by misapplying the erroneous approach that it purports to utilize. The Hickmon court failed to follow the Staab instruction that “what is advantageous to [the new family unit] as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interest of the children.” Staab, 44 Ark. App. at 127, 868 S.W.2d at 519. Without taking into account the effect that the advantages to the parent would have on the child, the Hickmon court failed to consider the advantages of the relocation to the new family unit as a whole; thus, erroneously looking for advantages specific only to the child, an erroneous application of an erroneous standard.
Adopting the rationale of Cooper and Holder would certainly necessitate the overruling of Hickmon, as the Hickmon court’s decision to affirm the denial of the relocation petition based upon a failure to meet the threshold burden could not stand when the modified threshold burden is applied.
Because the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken into account. . . . We do not . . . equate the best interests of the child with the best interests of the custodial parent. We do maintain, however, that a determination of the best interests of the child requires taking into account the interests of the custodial parent.”
Cooper, 491 A.2d at 612. Not only was the Cooper burden of a real advantage to the parent clearly met in Hickmon, but most certainly the Holder burden of a sincere, good-faith reason was presented for the move in Hickmon, the mother’s remarriage and opportunity to spend more time at home with her child.
Whether the threshold burden of demonstrating a “real advantage” remains the law in the future, or whether the rationale advocated herein is adopted, no inquiry can be made in a vacuum. The custodial parent necessarily affects the well-being of the child; thus, it is unavoidable to conclude that the better the well-being of the custodial parent, the better the child’s well-being is likely to be. Because the Hickmon decision is premised upon the failure to meet the D’Onofrio threshold burden, its overruling by the adoption of the Holder rationale and the return to rationale that is consistent with our supreme court’s precedent is inescapable, and is not capable of distinguishment.
The supreme court has expressed its disdain for imprisoning custodial parents in the state of Arkansas. Yet, I recognize that each set of parents, each new family unit, and each new set of circumstances requires a fact-intensive inquiry and that there can be no black-letter rule in areas such as this. The trial judge is faced with balancing a custodial parent’s freedom to relocate with the non-custodial parent’s rights to visitation and maintenance of a meaningful relationship with the child. Recognizing a presumption in favor of the custodial parent’s freedom to relocate will not give custodial parents unfettered permission to relocate, as the trial judge is still the gatekeeper and guardian of the well-being of the child, and relocation would not be allowed when the trial judge determines that the relocation would be detrimental to the child. A presumption is such because, in the usual course of events, a particular behavior, result, or event is the most probable, ceteris paribus, given a certain set of circumstances. Hickmon has been the only post-Staab case in which we affirmed a denial of a petition to relocate. Recognizing a presumption in favor of relocation merely recognizes the fact that, in the usual course of events, ceteris paribus, relocation is not detrimental to the child.
I agree that the case at bar must be reversed. Further, I advocate that this court modify the Staab relocation analysis to reflect the modifications pursuant to Cooper, Holder, and Baures, and adopt a presumption in favor of a custodial parent’s right to relocate with the child unless such relocation is found to be detrimental to the child.
Vaught and Baker, JJ., join in this concurrence.