mom kissing girl's head

Relocation: Burden Is STILL Clearly on The Non-Moving Parent

Case is Fischer v. Smith (decided May 16, 2012)

Mom (Fischer) wants to move with the minor child (age 3) to the U.S. Virgin Islands.  She provided the following evidence at her relocation hearing:

"She desired to relocate to the U.S. Virgin Islands because she “ultimately” wanted to advance her career there teaching American Sign Language. Although she admitted that she did not have an employment contract at the time of the hearing, she had made inquiries into employment opportunities in the Virgin Islands..she would have the support of her father and stepmother, who both live there, as well as her six siblings who regularly visit the beachfront resort that her father owns in St. Croix. Fischer noted that she had no extended family in Arkansas and that although she currently resided in a nice home in Fort Smith, she regarded the $1260 per month mortgage as “too expensive.” According to Fischer, she had already made living arrangements at her father’s resort while she waited for an apartment. She had enrolled M.S. in a private school, The St. Croix Day School, which offered swimming lessons. She also introduced a printout from the website of the Pointe Dance Academy, a ballet school in which she had enrolled M.S. Fischer also made part of the record numerous photographs that showed her desired residence to be a tropical paradise."

The Court opined the following:

"...the reason for relocation was simply to leave Fort Smith.  It noted that there was testimony that Smith only missed visitation “during the nine days he was in rehab.” Further, it found that Fischer “has not secured employment in the United States Virgin Islands.” The trial court further found that “Plaintiff admitted that the educational, health and leisure activities were no better in the United States Virgin Islands than those activities in which the minor child participated, here in Arkansas,” and noted that the child lived in a “four bedroom home in Arkansas and would be living in an apartment in the United States Virgin Islands.” The trial court further opined that visitation would likely not occur more than two times per year and that telephone communication would “not likely be much better based upon the age of the minor child.” It found that Fischer’s only family member residing in St. Croix was her father, and he was only present “nine months of the year.” Conversely, Smith has extended family in Fort Smith and the court was “convinced” that Smith and his mother “enjoy a strong bond with the minor child.” The court did not consider the preference of the minor child due to her age."

Fischer's relocation request was denied.  She appealed and argued that the Court incorrectly shifted the burden of proof to her to prove that the relocation was in the best interest of the child.  The Court of Appeals agreed and reversed the decision.

The Court of Appeals stated the following:

In our view, the trial court improperly required Fischer to prove that her proposed relocation to the Virgin Islands offered some material advantage. The trial court’s misapplication of the law is particularly evident when it recited that Fischer’s “motive for relocation was simply to leave Fort Smith,” and that she had not proved that the educational, health, and leisure activities were better in the Virgin Islands. As noted above, a custodial parent’s desire to leave his or her place of residence, without more, is not a legal barrier to relocation. This case is a great one to review on the requirements of relocating parents.  The burden is clearly on the non-moving parent and both sides need to remember that when preparing their case.

For a discussion of relocation law and the seminal case in Arkansas, click here.