“Material Change in Circumstances” Rule Thwarts Father Who Fails to Request Right to Move with Child in Divorce Complaint

Imagine that you’re a divorced parent who wants to move to a new state, a family law judge determines that the child you share with your ex will be better off with you in the new state than the other parent in Arkansas, but you still end up without the legal right to move with your child. Well, that’s pretty much what happened to the appellee in Price v. Price, 2020 Ark. App. 281. We’ll begin with the facts in this case, which, like many in family law, are pretty interesting.

The Prices were a military couple based in South Dakota.  In 2017, as husband Christopher’s military career was winding down, wife Lache traveled to Arkansas to look for places for the family (Lache, Christopher, and their minor child) to move post-retirement. However, shortly after arriving, Lache informed Christopher that she wanted a divorce and would not be returning to South Dakota. A few months later, after learning that Lache had taken up with a new man and become pregnant with that man’s child, Christopher moved to Arkansas.

In March 2018, shortly after arriving in Arkansas, Christopher filed for divorce. One of the issues to be determined was custody of the Prices’ son.

At the final divorce hearing, the parties submitted evidence regarding their respective living situations. For instance, Christopher informed the court that he wished to move to Indiana with the child and that he had family there who would give them a strong support system. The evidence regarding Lache’s environment was not as positive, as her new boyfriend had previously been convicted of a felony, her car was unregistered and had a delinquent note, and she had moved several times since arriving in Arkansas. However, despite those issues, it seems that during the pendency of the divorce, the parties had successfully co-parented while sharing custody of the child.

Though Christopher told the court of his desire to move, the court declined to decide that issue at the divorce hearing because Christopher had not actually made any filing requesting permission to relocate with the child. Instead, the court granted the parties joint custody and stated that it would take up the issue of relocation when a proper motion was filed.

A week and a half after the court entered the divorce decree, Christopher filed his motion. The motion stated, in relevant part, that “‘Based upon all the factors that were evident during the divorce proceedings, it would be in the best interests of the child that he be allowed to relocate to Indiana’ and ‘that [Christopher’s] relocation constitutes a material change in circumstance for which modification should be based.’” Id. at 3.

The evidence presented at the hearing on the relocation motion, which took place several months after the divorce was finalized, was essentially the same as that given at the divorce hearing. There was also evidence that Christoper had secured work and childcare in Indiana since the divorce hearing. Additionally, the opinion suggests that the court was asked to consider the attention required by Lache’s new baby, who had a disability.

The court granted the motion, citing “Christopher’s two job offers in Indiana; the substantial help available from his siblings in Indiana; Lache’s lack of income; Lache’s duties to her disabled daughter by her adulterous relationship with [her new boyfriend]; Lache’s cohabitation with [her boyfriend], a convicted felon; and Lache’s lack of secure transportation.” Id. at 4. 

Lache appealed, arguing that the circuit court erred by allowing Christopher to raise the relocation issue and that he had failed to demonstrate a material change of circumstances.

The Court of Appeals held that the circuit court erred as to the ultimate issue. Citing Singletary v. Singletary,  2013 Ark. 506, the court set forth the standard for relocation when the parents share joint-physical custody:

The proper analysis for a change-in-custody request due to the relocation of one parent in a joint-custody situation is the same as that when relocation is not involved; the court must first determine whether a material change of circumstances has transpired since the last order on custody and whether the change in custody is in the best interest of the child. The main consideration in a case involving child custody is the welfare and best interest of the child, and all other considerations are secondary.  When a party is requesting a change of custody, it is that party’s burden to show that there has been a material change of circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interest of the child. 

Id. at 7 (emphasis added) (citations omitted). 

Examining the custody order and the evidence presented by the parties at the two hearings, the Court of Appeals determined that the circuit court had not made the required finding that Christopher had proven a material change in circumstances. Additionally, the court held that the evidence did not support such a change. Accordingly, instead of reversing and remanding, i.e. sending the case back down to the circuit court for the parties to have kind of a “do-over” trial, it reversed and dismissed the case completely. Therefore, if he wants to move, Christopher will have to file another motion to relocate. All this despite the fact that the circuit court seemed convinced that the father was the proper parent and that the minor child would be better off with him in Indiana. So, how could this result have been avoided?

It is clear that Christopher came to the decision to move at some point before the divorce hearing, either before he filed for divorce or sometime between when he filed and when the final hearing took place. Therefore, he should have made a request to relocate during the course of the divorce proceedings, either in his complaint or, if he decided after filing, shortly after he made his decision. Depending on the timing, it might have required a delay in the proceedings to allow Lache to prepare to address that issue, but for efficiency’s sake, all would have been better served with a divorce hearing that resolved all the issues the parties needed the court to address.

Additionally, the circuit court might have left the final determination of custody open, allowing it to wait until Christopher’s relocation motion to decide the issue. This would have made the custody finding on relocation an initial determination, giving the court greater latitude in deciding the issue than it had in deciding it as a modification of an existing child custody order, which requires a material change in circumstances.

Moreover, granting primary physical custody to Christopher in the divorce decree, as the court seemed to believe was proper even at the divorce hearing stage, might have warded off this result. This also would have made it easier for the court to grant Christopher the right to relocate with the child later on.

Once the court granted the parties joint custody, Christopher should have made sure that the evidence he put on at the relocation hearing was sufficiently different from that submitted at the divorce hearing so as to better support a finding of a material change in circumstances.

This case is a reminder of the occasional odd nuances of law that can turn wins into losses.