FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72DR-16-279]
HONORABLE CRISTI BEAUMONT, JUDGE
WAYMOND M. BROWN, JUDGE
Melita Cox (now Nicola) appeals the order of the Washington
County Circuit Court denying her motion for relocation and
modification of visitation. On appeal, she argues that the
circuit court "improperly shifted the burden to Ms.
Nicola to prove that her proposed move to Winnipeg, Canada,
would be advantageous to herself and the children." In
light of the Arkansas Supreme Court's decision in
Hollandsworth v. Knyzewski, we agree and hold that the
circuit court clearly erred in denying Melita's request
to relocate; therefore, we reverse and remand.
parties were divorced in August 2016. Born of the marriage
were two children of whom Melita was awarded primary custody
subject to appellee Nathan Cox's visitation rights. In
July 2017, Melita filed a motion to relocate, expressing her
desire to move the children, M.C. (11) and F.C. (3), to
Winnipeg, Canada, for "better education, financial and
employment opportunities." Nathan responded, objecting
to the relocation and asserting that it would have a
"detrimental effect" on his relationship with the
children. A hearing was held on January 3, 2018.
hearing on the motion to relocate, both Melita and Nathan
testified. Melita stated that following the divorce in 2016
she was awarded primary custody of the children while Nathan
was awarded visitation on alternating weekends, 6:00pm-8:00pm
on Tuesdays, and as provided in the court's standard
visitation schedule for holidays.
testified that she first notified Nathan on May 18, 2017, via
text message regarding her desire to move and request for a
"different visitation schedule." She stated that he
responded that he wanted her to be happy and wished her well,
which she took as an indication that he was supportive and
consented to the move. Melita again contacted Nathan via text
on June 27, 2017, concerning relocation and the need for a
"revised long-distance visitation schedule." At
that time, Nathan still did not object to Melita's
proposed move with the children.
7, 2017, Melita prepared a letter expressing her
"intention to move to Winnipeg-Manitoba, Canada"
for employment and educational opportunities. She expressed
her willingness to work with Nathan in coordinating
visitation and transporting the children between Canada and
Arkansas. Melita specifically provided:
willing to drive half way the distance between Fayetteville,
Arkansas and Winnipeg, Canada every summer until the children
turn 18 years old. They can spend the entire summer vacation
with the non-custodial parent, Nathan Lloyd Cox, from first
weekend of summer vacation until the last Friday preceding
the start of the new school year.
further offered electronic communication with the children
"by means of telephone, mobile phone, text messaging,
[and] video conference" to supplement traditional forms
of visitation. Still, there was no objection to the
relocation from Nathan. Melita filed a motion for relocation
and modification of visitation on July 14, 2017.
testified that on July 19, 2017, Nathan texted her the
We need to talk sometime. I wanna know all details. I will
follow any path you think is best for you and kids. They will
grow up soon and I don't want to be the reason why they
look down on me. One life we all have. Let's think about
kids. I have you're [sic] back on any dission [sic] if
it's safe for my kids. This message was the hardest thing
I ever have done in my life.
then arranged to meet to discuss the details; however, the
meeting did not happen. The following week, Nathan informed
Melita that he would "meet [her] in front of the
testified that she wished to move to Canada to further her
education, beginning with completing her Bachelor of Science
degree and then moving on to medical school, stating that it
"will be better for the kids if I get a better job and
have a more stable financial situation." Melita also
stated that moving to Canada would allow her parents to be
involved in the children's lives. She explained that her
parents live in Romania and that it had been difficult for
them to obtain a visa to visit them in the United States;
however, Romanians can travel to Canada without a visa.
stated that she had already secured a one-bedroom apartment
in Winnipeg and had placed a $450 deposit on it. Melita
provided her acceptance letter to the University of Manitoba.
F.C. is not yet of school age, but M.C. would attend George
Waters Middle School in Winnipeg. Upon inquiry, the principal
of George Waters Middle School informed Melita that M.C.
should not have any academic problems with transitioning to
the school. Melita obtained the school calendar and
calculated a total of 95 days of school break during which
Nathan could exercise visitation with the children (spring
break, Christmas break, and summer). Under the current
visitation schedule, Nathan receives 108 days of visitation.
Melita explained that she would encourage the use of calls,
messages, and video chat to supplement Nathan's
interaction with the children.
cross-examination, when asked if there was a medical school
in Arkansas, Melita replied that there is not one in
Fayetteville, but there is one in Little Rock-UAMS. However,
"I did not apply to UAMS. My intention was to relocate,
so I applied to the University of Manitoba." She further
acknowledged that while many states may have medical schools,
she did not apply to those schools because "[m]y focus
was to relocate to Winnipeg, Canada." Additionally,
"[a]s to whether I have a basis of comparison to attest
that the educational opportunities afforded by the University
of Manitoba are superior to any opportunities I would have at
UAMS or any other state that is contiguous, the point was not
to compare universities. The point was to attend a university
in the same city where I would be moving."
also testified at the hearing. He stated that Melita "is
a great mom. I do not have any problem with the way she has
cared for the children as a mother, other than taking them
away from me. As to whether she will continue what she is
doing now if she moves to Canada, she will do great wherever
she goes." He went on to say that he changed his mind
multiple times about Melita relocating with the children.
Nathan also stated that he had initially agreed with her
moving to Canada because "I wanted to do what was best
for the kids."
testified that he believes that Melita does want to further
her education and attend medical school, as they had
discussed it many times during their marriage. He also
believes that Melita obtaining a medical degree would have a
positive impact on the children's future. However, while
agreeing that she will need help, he stated that he believed
that she could get the extra help where they currently live.
went on to acknowledge that Melita had never denied him
visitation with the children, had never denied a telephone
call with the children, and had never denied any other
contact with the children. He further stated that the
"92 days of break on the George Waters' school
calendar are not far off" from the number of days he is
awarded visitation under the current custody agreement.
However, he argues that getting blocks of visitation instead
of alternating weekend visitation "would not be close to
maintaining an equivalent relationship that I have with them.
That is why I oppose it." In closing, Nathan testified,
"I still believe that no matter where she is, she would
take the best care of my kids she possibly could. She would
always provide for them."
the hearing, the circuit court entered an order denying
Melita's motion for relocation and modification of
visitation. She now appeals.
reviewing child-custody cases, we consider the evidence de
novo, but the circuit court's findings of fact will not
be reversed unless they are clearly erroneous or clearly
against the preponderance of the evidence. A finding is
clearly erroneous when, although there is supporting evidence
in the record, the appellate court viewing the entire
evidence is left with a definite and firm conviction that a
mistake has been committed. We give due deference to the
superior position of the circuit court to view and judge the
credibility of the witnesses.
is the controlling case regarding the relocation of custodial
parents.Hollandsworth expressly pronounced
that there is "a presumption in favor of relocation for
custodial parents with primary custody. The noncustodial
parent should have the burden to rebut the relocation
presumption. The custodial parent no longer has the
responsibility to prove a real advantage to herself or
himself and to the children in
relocating." The court recognized that divorce not only
changes the relationship between parents, but it also
inevitably changes the nature of the relationship between
parents and their children. The Hollandsworth court
further stated that it was "a matter of common knowledge
that at least one parent must necessarily forfeit some
individual rights to the constant companionship of minor
children when a divorce decree is
recognizing the custodial parent's right to relocate with
his or her children, the Hollandsworth court set
forth the following factors to be considered in determining
the best interest of the child in the matter of a request for
relocation: (1) the reason for the relocation; (2) the
educational, health, and leisure opportunities available in
the location in which the custodial parent and children will
relocate; (3) visitation and communication schedule for the
noncustodial parent; (4) the effect of the move on the
extended family relationships in the location in which the
custodial parent and children ...