2014 Ark. App. 351
Ark. Ct. App.2014Background
- Arkansas Court of Appeals Division II affirmed an order granting relocation of two daughters.
- Pursuant to a 2007 order, Sean had primary custody of EF (11) and LF (8).
- Sean filed a 2012 motion to modify visitation and relocate to Atlanta; Regina countered with custody change and relocation prohibition.
- After an August 2012 hearing, the trial court denied Regina’s change-of-custody motion and granted relocation.
- Regina challenged the Hollandsworth relocation presumption and argued relocation was not in the children’s best interests.
- The appellate court held the Hollandsworth presumption properly applied and affirmed the relocation order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation and validity of Hollandsworth presumption | Foley argues Hollandsworth should be overruled; argument not preserved | Court properly applied the Hollandsworth presumption | Not preserved; issue waived |
| Proper application of Hollandsworth presumption to relocation determination | Best interests should control; presumption misapplied | Presumption properly applied with best interests considerations | Relocation affirmed under Hollandsworth presumption |
| Impact of children's preferences and expert testimony on relocation | Children’s wishes and therapists’ concerns favor staying in Arkansas | Child preferences are not controlling; therapists did not oppose move | Court did not err; relocation upheld despite concerns |
| Adequacy of visitation to rebut presumption and safeguard relationships | Visitation arrangement insufficient to rebut presumption | Meaningful visitation preserved; presumption not rebutted | Visitation plan affirmed; presumption not rebutted |
Key Cases Cited
- Hollandsworth v. Knyzewski, 353 Ark. 470 (2003) (establishes relocation presumption for custodial parent; noncustodian bears burden to rebut)
- Fischer v. Smith, 2012 Ark. App. 342 (2012) (meaningful visitation maintains relocation presumption)
- Mathews v. Schumacher, 2010 Ark. App. 155 (2010) (child's wishes not controlling in relocation decisions)
- Chastain v. Chastain, 2012 Ark. App. 73 (2012) (de novo review in equity cases; defer to trial court on credibility)