concurring. I join Judges Baker, Pittman, Bird, and Vaught, in today’s decision to reverse the trial judge’s decision that denied appellant’s request to relocate out-of-state with the children (Ethan Knyzew-ski and Katherine Knyzewski) from her previous marriage to appellee, and which changed custody of those children from her to her ex-husband. I join Judge Baker’s opinion because I agree that the trial judge clearly erred when she denied appellant’s relocation petition and ordered a change of custody based on what she deemed advantages to the children in reliance on the holding in Hickmon v. Hickmon, 70 Ark. App. 438, 19 S.W.3d 624 (2000). However, I write separately to express the following distinct concerns: (1) to the extent that the decision below relied upon Hickmon, the facts of this case are materially different; and (2) this case exposes deep flaws in the rationale underlying Hickmon. Those flaws show that our longstanding reliance on the “best interest of the child” standard for deciding child-custody disputes is being misapplied in disputes involving relocation petitions by custodial parents. Furthermore, the rationale advanced in the dissenting opinion reflects a biased perspective on relocation and child custody that unjustly penalizes custodial parents. Rather than extend Hickmon to this and future relocation controversies, I favor returning to the five factors for deciding relocation cases that our court announced in Staab v. Hurst, 44 Ark. App. 128, 868 S.W.2d 517 (1994).
Following a September 19, 2000 hearing, appellant and appellee were divorced pursuant to a decree entered on October 10, 2000. The divorce decree awarded appellant primary custody of Ethan and Katherine. Appellant began dating Brian Holland-sworth, a soldier in the United States Army whom she has known for several years. She married Hollandsworth on December 31, 2000, and thereafter informed appellee that she intended to relocate to Clarksville, Tennessee, to live with her new husband. On January 11, 2001, appellee filed a “Petition for Modification,” which asserted that appellant’s remarriage and announced intent to relocate Ethan and Katherine to Clarksville, Tennessee, would defeat his visitation schedule with the children and sever the ties the children had established in Northwest Arkansas so as to constitute a material and substantial change in circumstances warranting modification of the divorce decree insofar as child custody was concerned. The matter was heard by the trial judge on April 26, 2001, and the judge found that the appellant “failed to satisfy the burden of proof establishing that it would be in the best interests of the minor children for this Court to allow said minor children to be relocated to Clarksville, Tennessee.” The trial judge primarily based her finding and decision on evidence that the children enjoyed a strong connection with their father (appellee) based on the time spent with him since the divorce as well as “the strong ties to the family and community enjoyed by said minor children in Northwest Arkansas.”
The Holding in Hickmon is Distinguishable
In this case, the trial judge emphasized the evidence regarding the strong connection Ethan and Katherine have with their father and their ties to other family and friends in Northwest Arkansas. In doing so, the judge signaled that her decision on appellee’s petition for modification of the custody arrangement was based on the impact relocation would have on visitation by appellee and other relatives. The trial judge cited Hickmon as the basis for her decision.
However, Hickmon involved a very different set of facts from those found in this case. In Hickmon, the parent parties agreed to joint legal custody following their divorce, with the ex-wife appellant having primary physical custody of their seven-year-old daughter. The ex-husband appellee in Hickmon had extensive visitation pursuant to the agreement. However, the record contained clear evidence of disputes between the parents that impacted visitation and custody. The ex-wife appellant in Hickmon had a history of psychological illness which, although treated and improved, prompted one psychologist to opine that it “changed this whole situation a little bit” and “skewed a little bit more in the father’s favor, in terms of maintaining that parental involvement.” Hickmon, 70 Ark. App. at 441, 19 S.W.3d at 627. Two psychologists testified that the relocation would mean the child’s loss of contact with her father (the noncustodial parent), her home, pets, friends, and teacher. The Hickmon opinion also included one psychologist’s opinion that the appellant-mother’s desire to relocate was “in part inspired by her desire to get away from [her ex-husband] and noted that [the ex-wife appellant] expressed concern about [the child’s] step-mother attempting to assume her role.” Not only did that case involve evidence that the noncustodial parent was “highly involved” in the fife of the minor child, “to her obvious advantage,” but Judge Roafs opinion contained the following concluding sentence: “Significantly, both experts opined that the move was not in Miranda’s best interest.” Id. at 446, 19 S.W.3d at 630.
None of those significant facts occurred in this case. Appellant was awarded primary legal custody of Ethan and Katherine in the divorce decree. She and appellee amicably agreed, however, to share joint physical custody whereby each had custody of both children half the time each week. Unlike the situation in Hickmon, the former spouses in this case maintained an amicable relationship even after appellant remarried. Appellant and appel-lee apparently convinced the trial judge that their amicable relationship was not a charade. The trial judge expressly declared that appellant’s motives for wanting to relocate the children to Tennessee were pure and not an attempt to interfere with the relationship the children shared with their father. The trial judge also declared from the bench her conviction that appellant would comply with substitute visitation orders and “that she would absolutely get the children to and from each visitation.” Unless one believes that the facts in Hickmon were immaterial to the outcome and rationale given for the holding in that case, I do not understand how Hickmon compels the result reached by the trial judge in this case.
The analysis I advance is not new. In Parker v. Parker, 75 Ark. App. 90, 55 S.W.3d 773 (2001), our court reversed a chancellor’s decision that denied permission to a custodial ex-wife to relocate with her three children from Jonesboro to Little Rock, notwithstanding that the a temporary agreed order which awarded custody to the wife and provided that neither parent would remove the children from Craighead County for five years from entry of a final divorce decree. Judge Vaught, writing for the majority in Parker, reviewed our appellate decisions following Staab v. Hurst, supra, and correctly observed that Hickmon was — at that time —
[t]he only post-Staab decision in which we have upheld a chancellor’s decision to deny permission to relocate. . . . We affirmed primarily on the basis that the psychologists who testified were united in their opinions that the move would inflict a loss on the child and would alienate the child from her father and all the family, friends, and pets that she loved. By contrast, there is no testimony in this case that the move would have such a detrimental psychological effect on the children.
Parker, 75 Ark. App. at 99-100, 55 S.W.3d at 780. Similar to Parker, this case contains no proof that the appellant’s relocation to Clarksville, Tennessee will present the risk of the emotional injury to Ethan and or Katherine that was found controlling in Hickmon.
The Rationale Upon Which Hickmon Rests is Flawed
Besides being so factually different as to be of dubious prece-dential value, this case exposes deep flaws in the underlying reasoning on which the Hickmon holding purports to stand. The Hickmon court concluded that our decision in Staab v. Hurst, supra, “did not abolish the best-interest-of-the-child standard in cases where a custodial parent wishes to move a child out of state.” Hickmon, 70 Ark. App. at 444, 19 S.W.3d at 628. Rather, the Hickmon opinion asserts that in Staab, “this court merely provided more guidance for chancellors when they are confronted with this situation.” Id., 19 S.W.3d at 629. With no disrespect intended to the members of the current minority who also decided Hickmon, a fair reading of that opinion and the dissenting opinion in this case shows that what is supposed to be an inquiry into whether the proposed relocation presents some real advantage to the custodial parent and the children is often nothing more than an inquiry about whether the relocation poses an advantage to the children no matter what advantage it may present for the family unit as a whole (custodial parent and children). As such, Hickmon retreats from the Staab v. Hurst standard while purporting to honor it.
For example, the opinion in Hickmon quoted with apparent approval the comment in Staab that the pertinent standard “must be more specific and instructive to address relocation disputes.” Hickmon, 70 Ark. App. 444, 19 S.W.3d at 628. The Hickmon opinion also quoted the statement from Staab that “we think it important to note that determining a child’s best interests in the context of a relocation dispute requires consideration of issues that are not necessarily the same as in custody cases or more ordinary visitation cases.” Id., 19 S.W.3d at 628-29. The Hickmon court also quoted with approval the requirement that before a trial judge considers the five relocation factors announced in Staab, “the custodial parent bears the threshold burden to prove some real advantage to the children and himself or herself in the move.” Id. at 445, 19 S.W.3d at 629 (citing Wilson v. Wilson, 67 Ark. App. 48, 991 S.W.2d 647 (1999)).1
Despite reaching the consensus on de novo review that the proposed relocation “would have significant advantages” for the custodial parent, the outcome in Hickmon plainly turned on the conclusion that: “it ... is not apparent that there would be any ‘real advantage’ to [the minor child].” Hickmon, 70 Ark. App. at 445, 19 S.W.3d at 629. That conclusion was reached based on the following reasoning:
We cannot say that there is compelling evidence of improper motive on Sandra’s [the custodial parent and Hickmon appellant] part in wanting to move, or Randy’s [the Hickmon appellee] part in opposing it; that any visitation order would not be complied with; or that the visitation Sandra offered would not be substantial. Nonetheless, we have before us a case in which Miranda’s father is highly involved in her life, to. her obvious advantage, and a paucity of evidence of any real advantage for Miranda in moving to Phoenix. Significantly, both experts opined that the move was not in Miranda’s best interest.
Id. at 446, 19 S.W.3d at 630 (emphasis added).
The trial judge in this case was greatly influenced by the foregoing reasoning from Hickmon, because both cases involved situations where the noncustodial parents were “highly involved” in the lives of the children. Several problems arise from this analysis, nonetheless.
First, this reasoning implies that custodial parents bear a greater burden of proving that relocation outside the state presents an advantage to them and their children when the non-custodial parents are “highly involved” with the children. On its face, the fairness of that proposition seems self-evident. Serious questions arise, however, when one ponders the matter more deeply. Does this mean that the freedom of custodial parents to relocate depends on how involved noncustodial parents are despite proof that visitation will not be materially compromised and even when custodial parents prove that relocation will be advantageous for them and the children? Apparently so, because Hickmon and the present case include express findings by the trial judges that the custodial parents would comply with visitation orders. The Hickmon court refused to conclude that the custodial parent would offer anything other than substantial visitation; it also found no improper motive on her part in seeking to relocate. Thus, one wonders how custodial parents who successfully prove that relocation will not involve a substantial deprivation of the visitation rights exercised by noncustodial parents will ever meet the burden of proving that relocation will benefit them and their children when the noncustodial parents are deemed “highly involved” with the children. One also wonders why the fact that “highly involved” custodial parents who relocate will necessarily be less involved due to loss of custody is not viewed at least as detrimental to the children as would be the supposed loss of involvement by noncustodial parents posed by relocation.
This is not merely a hypertechnical concern. As previously stated, current law obligates the custodial parent to prove that relocation poses a real advantage to the children and the custodial parent. If the advantage demonstrated by such proof is nullified, if not trumped altogether, by proof that the noncustodial parent is “highly involved” in the lives of the children, then the inquiry actually turns on whether relocation poses an advantage to the children and the non-custodial parent.
Outside the visitation context, custodial parents have no control over how much noncustodial parents are involved with their children. Even within the context of visitation, custodial parents cannot control the involvement of noncustodial parents aside from ensuring that the child is available. This is true even when both parents live in the same community. To impose such an eviden-tiary burden on custodial parents who want to relocate to another state is unrealistic, to put it mildly.
Yet, this is but one flaw in the Hickmon rationale exposed by this case. Another involves the effect of Hickmon on custodial parents who want to remarry, retain custody of their children, and live outside Arkansas. In Hickmon, the custodial parent who remarried lost custody of her child, despite declaring that she would not relocate if it meant she would lose custody. Her petition for permission to relocate was denied and she lost custody, to boot. In this case, appellant remarried and forthrightly declared that she would relocate even if it meant losing custody. Despite concluding that appellant’s relocation presentéd a benefit to herself and the two children of her marriage to appellee was not an attempt to interfere with the relationship of Ethan and Katherine with appellee, and that appellant would comply with substitute visitation orders, the trial judge denied the relocation petition and the custody arrangement.
One would ordinarily think that courts encourage marriage. After all, judges and other officiants at marriage ceremonies profess that marriage is an honorable estate. I know of no caveat that holds remarriage to be less honorable or less worthy of affirmation. Furthermore, our courts have affirmed decisions to change custody in numerous cases upon proof of cohabitation by a custodial parent with another person without marriage while children of a former marriage are present. See Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). So it is more than a little strange that the law would essentially penalize a custodial parent who takes the honorable step of marriage following divorce if remarriage carries the prospect of life outside Arkansas.
The dissenting opinion and the Hickmon rationale on which it stands would produce a bizarre scenario. Formerly married custodial parents risk losing custody of their children if they cohabit without the benefit of marriage, whether in Arkansas or elsewhere. Formerly unmarried noncustodial parents risk nothing if they cohabit without marriage. If a custodial parent marries someone from another state and seeks permission to relocate with the children, under the dissenting judges’ reasoning the custodial parent would risk loss of custody even when relocation poses no substantial interference with visitation rights exercised by the noncustodial parent when the court determines that the noncustodial parent is “highly involved” with the children. If a noncustodial parent is “highly involved” with a child, but becomes less involved for whatever reasons, neither the holding in Hickmon nor the position advocated by our dissenting colleagues in this case suggest that the reduced involvement will constitute a material change of circumstance sufficient to restore the pre-relocation custody arrangement. One can easily conceive of situations where noncustodial parents remarry and remain “highly involved” with their children with the effect of including their new spouses with that involvement. Presumably, we would view the involvement by spouses of noncustodial parents to be advantageous to the children. Yet, “highly involved” custodial parents would never be able to even attempt comparable involvement of a subsequent spouse upon remarriage to a person living outside Arkansas if the position asserted by appellee and the decision of the trail court is upheld.
Beyond that, a noncustodial parent can relocate at will — without leave from or even providing notice to any court — no matter what impact relocation may have on the children or the ability of the custodial parent to fulfill parenting functions. Had the appellee in this case decided to remarry and move to Kentucky, for example, nothing in Hickmon or the dissenting opinion today suggests that appellant would have a right to oppose the relocation or otherwise object to it. No matter how that relocation might affect Ethan and Katherine emotionally, socially, or otherwise, no one suggests that appellant is entided to seek a decree ordering her former husband to remain in Arkansas to continue his relationship with Ethan and Katherine, let alone make sure that the children interact with their grandparents on either side of the family. A rule of law that effectively requires custodial parents to gamble custody of their children before they can live with their children and new spouses outside Arkansas — while imposing no similar limitations on noncustodial parents who profess to be “highly involved” in the lives of their children — seems the very antithesis of domestic stability. It is also grossly unfair.
Judging from Hickmon and the dissenting opinion today, the fact that this disquieting inconsistency disproportionately affects women more than men seems irrelevant. In Parker v. Parker, supra, Judge Vaught observed that we have approved parental relocations in four published cases applying the Staab factors. I find it more than coincidental that in each of those cases, the custodial parent seeking relocation was the mother. In Wilson v. Wilson, supra, we affirmed the chancellor’s decision to allow relocation to California because the custodial parent felt she could find employment there. In Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000), we affirmed a chancellor’s decision to allow a relocation to Texas because the custodial parent had obtained a better-paying job with less travel. In Wagner v. Wagner, 74 Ark. App. 135, 45 S.W.3d 852 (2001), we affirmed a chancellor’s decision to allow relocation to Florida because the custodial parent had a job opportunity there and would be near her mother. In Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001), an intrastate relocation case like Parker, we reversed the chancellor’s decision to prohibit the custodial mother from moving to El Dorado from Fayetteville to accept better employment. In Gerot v. Gerot, 76 Ark. App. 138, 61 S.W.3d 890 (2002), we reversed a chancellor’s decision changing custody to the noncustodial father because there was neither allegation nor proof of a material change of circumstances. We remanded the case to the chancellor for reconsideration of the appellant and custodial mother’s petition to relocate to Florida where she had obtained more attractive employment.
Our society has long practiced a double standard regarding social freedom and gender. That men can' be custodial parents and, as such, would be bound by the Hickmon rationale is merely a truism. The more relevant truth is that men are unentitled beneficiaries of greater social, economic, and cultural freedom than women who, for reasons largely due to gender, labor under greater social, economic, and cultural burdens when they try to exercise freedoms men often take for granted. Men are less likely to encounter social ostracism than women after divorce, no matter the reason for the divorce. They are less prone to encounter discrimination on account of their gender in the workplace, whether they are custodial parents or not. In Arkansas and elsewhere throughout American society, men earn decisively more money than women, even when performing the same work. Thus, the social, economic, and cultural forces that might influence a divorced woman to relocate to another state usually will not affect men the same way.
More women are pursuing job opportunities outside Arkansas, whether they remarry or not. With per capita income being higher and job prospects often more attractive in other states than in Arkansas, continued adherence to the Hickmon holding will mean even more difficult times for formerly married women striving to raise their children and themselves through higher pay and life in more socially-progressive settings. Although I do not suggest that the decision in Hickmon reflects gender bias on our court, I cannot ignore the gender-specific consequences it portends. Even when relocation and remarriage mean a custodial parent will be able to spend more time with the children and provide other advantages — as shown by this case — the result today and in Hickmon show that custodial parents — women in many instances — face an onerous task in convincing judges that relocation is advantageous for them and their children where the children are “highly involved” with noncustodial parents.
The Staab v. Hurst Remedy
I believe that we can reverse the trial judge without disturbing Hickmon. As stated before, the facts in Hickmon regarding the expert opinion testimony about the perceived negative impact that relocation would have on the emotional welfare of the child are factually distinguishable from this case. We distinguished Hickmon on that basis when we reversed a chancellor’s decision to deny intrastate relocation in Parker. I see no reason not to do so now.
On the other hand, the decision below in this case shows that the holding and rationale in Hickmon create more problems than they purport to solve. Whatever else may be disputed, it is unmistakably clear that the trial judge in this case felt bound by Hickmon to deny appellant’s relocation petition. Rather than decide •whether relocation posed a real advantage to the family unit consisting of the custodial parent and the children, the judge focused on whether relocation was advantageous to the children in view of the fact that the noncustodial parent was “highly involved” with them.
The remedy for this mis-analysis lies in basing relocation decisions on the five-fold test prescribed by Staab v. Hurst, 44 Ark. App. at 134, 868 S.W.2d at 520. These factors are as follows:
(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 non-custodial parent; (3) whether the custodial parent is likely to comply with substitute visitation orders; (4) the integrity of the non-custodial 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 non-custodial parent.
(Emphasis added.) These factors accomplish the valid purposes of considering whether the relocation presents a real advantage to the custodial parent and the children while also considering the effect of removal on the opportunity for visitation by the noncustodial parent.
When I analyze this case in view of the Staab factors, I have no difficulty agreeing that we should reverse the trial judge’s denial of appellant’s relocation petition and the decision to change custody to appellee. The trial judge was unequivocal during her bench ruling: she did not doubt that appellant would comply with substitute visitation orders and “that she would absolutely get the children to and from each visitation.” However, the trial judge decided that there “was not a way to substitute the long distance visitation for what the children have been used to with their father. . . These children are used to being with their dad three and a half days a week and with their mom three and a half days a week. They are used to seeing grandparents very regularly in their home every week on a weekly base [sic]. There are maternal grandparents here as well ...”
The trial judge correctly observed that appellee and appellant equally divided the time that the children spent in their respective homes. However, that arrangement reflected an agreement that was likely to change even had appellant not remarried and decided to move to Tennessee to live with her new spouse. At the hearing, Ethan, the older child, was due to enter kindergarten soon. By now, Katherine is kindergarten age. Appellant lived in Fay-etteville, appellee lived in Rogers. While it may be pleasant to imagine that the equal time arrangement would continue once Ethan began school, that assumption is unrealistic.
Furthermore, our decision in Parker, supra, shows that even when the parties have entered into a formal and court-approved agreement providing against relocation, their agreement is “nothing more than an indicator that, at some point, appellant and appellee shared the attitude that the children should not be moved.” Parker, 75 Ark. App. at 100, 55 S.W.3d at 780. If the court-approved agreement in Parker did not trump proof that the appellant’s relocation presented a real advantage to herself and her children and otherwise was consistent with the Staab factors, I see no reason why the parties’ arrangement in this case should do so. Given the trial judge’s conclusion that appellant would comply with substitute visitation orders and that the relocation was not based on a desire to interfere with the relationship the children had with appellee, I must conclude that the judge’s decision was clearly erroneous.
My view is further strengthened by the fact that appellant now has a third child, born from her union with her current spouse. The trial judge’s decision not only severed the family unit consisting of appellant, Ethan, and Katherine. It effectively precluded appellant’s third child from joining that family unit. I see no value whatsoever in preventing appellant, Ethan, and Katherine from establishing and nurturing appellant’s third child ■— the half-sibling of Ethan and Katherine — as part of their family unit consistent with the first factor in Staab v. Hurst. I certainly see a detriment to that family unit by the effect of the trial judge’s decision denying relocation.
Finally, I join the decision to reverse the trial judge’s decision to change custody to appellee. It is established law that the party seeking modification of a previous child custody order has the burden below to show a material change of circumstances sufficient to warrant a change of custody. See Gerot v. Gerot, supra; see also Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999). While custody is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues. See Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). Appellant’s relocation to Tennessee and remarriage are not, considering the other proof, material circumstances affecting the welfare of the children so as to warrant a change of custody to appellee.
I consider this “threshold burden” merely duplicative of the first Staab factor, i.e., “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.” See Staab, supra.