The Arkansas Court of Appeals continues to grapple with the application of Hollandsworth v. Knyzweski, 353 Ark. 470, 109 S.W.3d 653 (2003).   Hollandsworth announced a presumption in favor of a custodial parent’s relocation, and that relocation alone would not constitute a material change of circumstances to justify a change of custody.   But even after the Supreme Court’s decision in Hollandsworth, this issue is still the subject of much disagreement, as evidenced by the rare nine-judge decision today from an en banc Arkansas Court of Appeals.

In Bishop v. Singletary, 2013 Ark. App. 394, Judge Wynne was joined by Judges Walmsley, Glover and Hixon, with Judge Brown concurring, in reversing a trial court’s change of custody when the mother proposed to move out-of-state. The mother and father shared joint legal custody, but the mother had primary physical custody.   The trial court ruled that the Hollandsworth presumption did not apply in this circumstance, and granted a change of custody to the father. The five judge majority reversed, finding that the move was not a material change and that the trial court was obligated to apply Hollandsworth, even in a joint legal custody situation.

But four other judges on the court dissented.  Chief Judge Gladwin framed the issue as whether the joint custody arrangement was a question of fact or question of law.  He viewed it as a question of fact, and would affirm based on the standard of review because he could not say the trial court’s decision was clearly erroneous.  Notably, Chief Judge Gladwin’s dissent argues that the Hollandsworth presumption need not apply under these circumstances.

The three remaining judges on the case (Wood, Harrison, and Gruber) joined in a dissent disagreeing with both the majority opinion and Gladwin’s dissent.  Their take on the issue was this:

“Based on the testimony and the decree, the court found that the parents had a true joint-custody arrangement and that neither was entitled to the Hollandsworth presumption.  This finding was not clearly against the preponderance of the evidence, and we should affirm.”

It will be interesting to see if the Supreme Court takes this case on review to attempt to bring some certainty to this issue.  The full text of today’s decision in Bishop v. Singletary is available here: