Jeffrey R. Arnott v. Paula a/k/a Polly A. Arnott

IN THE SUPREME COURT, STATE OF WYOMING

2012 WY 167

OCTOBER TERM, A.D. 2012

December 28, 2012

JEFFREY R. ARNOTT,

Appellant

(Defendant),

v. No. S-12-0089

PAULA a/k/a POLLY A. ARNOTT,

Appellee

(Plaintiff).

Appeal from the District Court of Teton County

The Honorable Timothy C. Day, Judge

Representing Appellant:

Leah K. Corrigan and James K. Lubing, Lubing & Corrigan, LLC, Jackson,

Wyoming.

Representing Appellee:

Anne B. Ashley, Anne B. Ashley, LLC, Jackson, Wyoming.

Guardian Ad Litem:

Steven R. Dwyer, The Law Office of Steven R. Dwyer, LLC, Jackson, Wyoming.

Before KITE, C.J., HILL, VOIGT, BURKE, JJ., and GOLDEN, J., Retired.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.

BURKE, Justice.

[¶1] Appellant, Jeffrey Arnott (Father), challenges the district court’s order denying his

petition for modification of the parties’ divorce decree, which granted primary physical

custody of the parties’ two daughters to Appellee, Paula (“Polly”) Arnott (Mother).

Father sought modification of custody after Mother gave notice of her intention to

relocate to Virginia with the children. Relying on this Court’s decision in Watt v. Watt,

971 P.2d 608, 614 (Wyo. 1999), the district court applied a “strong presumption in favor

of the right of a custodial parent to relocate with her children” and determined that Father

had failed to establish a material change in circumstances warranting an analysis of

whether modification would be in the best interests of the children.

[¶2] On appeal, Father contends that our decision in Watt should be overturned. He

asserts that application of that precedent undermines his constitutionally protected

parenting rights and the state’s interest in promoting the best interests of the children.

We agree and hold that application of a presumption favoring the relocating custodial

parent should not be applied in determining whether there has been a material change in

circumstances. To the extent that our decision in Watt mandates application of such a

presumption, it is hereby overturned. Because the district court applied this presumption

in determining that Father had failed to meet his burden of proving a material change in

circumstances, we reverse and remand for further proceedings consistent with this

opinion.

ISSUES

[¶3] Father presents the following issues for our consideration:

1. Did the District Court err when it determined that this

Court’s holdings in Watt and Resor foreclosed a

determination that an interstate relocation can give rise to

a substantial change in circumstances sufficient to

consider a custody modification?

2. In the alternative, and as a matter of first impression, did

the District Court’s application of Watt and Love violate

the Father’s fundamental constitutional right to raise his

children?

3. Also in the alternative, to the extent the District Court did

not err in its interpretation of Watt, and the Watt standard

is retained as constitutional, did the District Court exceed

the bounds of reason in deciding that the Mother’s move

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of 2,140 miles still allows for reasonable visitation for

Father?

Mother states the issues as follows:

1. Was the District Court correct in determining that an

interstate relocation by the primary custodial parent,

standing alone, does not constitute a material a n d

substantial change in circumstances sufficient to modify

custody under Wyoming law?

2. Did the District Court correctly determine that the

custodial parent’s motives for relocating were legitimate,

sincere and in good faith?

3. Did the District Court correctly determine that reasonable

visitation is still available to the non custodial parent after

relocation?

FACTS

[¶4] The parties were married in 2001 and lived together in Jackson, Wyoming until

their divorce in 2010. Their first daughter, AGA, was born on June 6, 2003, and their

second daughter, ALA, was born on June 30, 2005. At the time of their divorce, the

parties agreed that they would share joint legal custody of the children, and that Mother

would have primary physical custody, subject to Father’s reasonable visitation. The

parties agreed to “consult with each other regarding major decisions involving the

children, including but not limited to their education, health, and other issues involving

the children’s welfare.” The parties agreed that Father would have visitation every other

weekend, as well as on alternating Thursdays. They also agreed to Father’s visitation on

alternating holidays and during two two-week periods in the summer. The decree of

divorce required Mother to provide notice if she intended to relocate.

[¶5] On July 8, 2011, Mother filed a notice of intent to relocate, indicating that she

intended to move with the children to Mechanicsville, Virginia on August 13, 2011. Ten

days later, Father filed a petition for modification of custody alleging that Mother’s

anticipated move constituted a material change in circumstances with respect to custody

and visitation. The petition also alleged that it was in the best interests of the children for

Father to have primary residential custody. On Father’s motion, the court issued a

temporary order enjoining Mother from removing the children from Wyoming pending a

hearing on the merits of Father’s petition.

[¶6] Mother moved to dismiss the petition to modify custody and visitation, asserting

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that under this Court’s decision in Watt, relocation by a custodial parent, by itself, is not a

material change in circumstances sufficient to justify a modification of child custody.

The district court converted the motion to dismiss to a motion for summary judgment

after Father filed an affidavit with his response to the motion, and the court invited the

parties to supplement their pleadings and provide additional evidence. After a hearing,

the court denied Mother’s motion, finding there were issues of material fact as to

“whether the circumstances surrounding [Mother’s] proposed move to Virginia would

constitute a material change of circumstances justifying a modification of the parties’

custody arrangement.” A hearing on Father’s petition was held in early November, 2011.

[¶7] The district court began the hearing by noting that Watt and its progeny had

established a presumption in favor of the custodial parent’s right to relocate with the

children:

Whether you disagree with it or whether you agree

with it and whether you like it or not, the law is very clear in

Wyoming when it comes to considering whether a material

and substantial change of circumstances exists sufficient to

modify custody when a custodial parent wishes to relocate

with [the] children.

It’s a high standard, the – there’s a strong presumption

in Wyoming in favor of the right of a custodial parent to

relocate with [the] children, assuming certain criteria are

satisfied. . . .

During the hearing, the court received testimony from several witnesses, including the

parties, the children’s dual-language immersion teacher, a nurse from their pediatrician’s

office, Mother’s sister, and a close personal friend of Father’s. At the conclusion of the

hearing, the court issued its ruling from the bench.

[¶8] The court found that the children had “an outstanding set of parents” and “an

incredibly involved father whose life revolves around his relationship with his children.”

The court noted that both Mother and Father were exemplary parents, that the children

were “thriving” in their current environment, and that the “arrangement here in Jackson

has worked incredibly well.” The court further commented that “If I had my wish it

would be that Ms. Arnott would find some way to stay here or nearer so that the

extraordinary relationship that Mr. Arnott has with his children could continue to

blossom in a similar fashion.” But the court again noted that Wyoming precedent had

created a “strong presumption in favor of allowing the custodial parent to move with [the]

children” and had placed a “difficult burden” on the noncustodial parent to show a

material change in circumstances based on the custodial parent’s relocation.

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[¶9] Following the criteria set forth in Watt, the district court determined that Mother’s

motives for the relocation were legitimate, sincere, and in good faith. The court also

found that Mother’s relocation would still permit Father’s reasonable visitation if

visitation was expanded. The court concluded that Father had not established that

Mother’s relocation constituted a material change of circumstances sufficient to warrant

consideration of a change in custody. The court’s oral ruling was memorialized in a

written Order Denying Defendant’s Petition for Modification of Custody and Visitation,

issued on December 27, 2011. Mother moved to Virginia with the children shortly

thereafter.

[¶10] After both parties submitted proposals for a revised visitation schedule, the court

ordered a visitation plan for Father that increased his summer visitation to eight weeks,

and expanded visitation during school holidays and during a week in February. The

visitation plan also allowed Father to visit the children at any time in Virginia with

advance notice. Father appeals from the district court’s order.

STANDARD OF REVIEW

[¶11] Father contends the district court misapplied Wyoming law with respect to

whether an interstate relocation constitutes a “material change in circumstances”

sufficient to warrant modification of child custody. This Court reviews questions of law

de novo. Willis v. Davis, 2010 WY 149, ¶ 10, 243 P.3d 568, 570 (Wyo. 2010). Father

also claims the district court’s decision abridged his constitutional right to raise his

children, and asks this Court to overrule the decision in Watt. We review constitutional

issues de novo. Hanson v. Belveal, 2012 WY 98, ¶ 12, 280 P.3d 1186, 1191 (Wyo.

2012). Finally, Father asserts that the district court exceeded “the bounds of reason” in

determining that Mother’s relocation would still permit reasonable visitation. On this

issue, we review for an abuse of discretion. “The trial court has discretion in determining

custody and visitation issues to be in the best interests of the children: ‘Custody,

visitation, child support, and alimony are all committed to the sound discretion of the

district court.’” Zupan v. Zupan, 2010 WY 59, ¶ 12, 230 P.3d 329, 333 (Wyo. 2010)

(quoting Pace v. Pace, 2 0 0 1 W Y 4 3 , ¶ 9, 22 P.3d 861, 865 (Wyo. 2001)).

DISCUSSION

[¶12] Disputes arising from the relocation of a custodial parent “present some of the

knottiest and most disturbing problems that our courts are called upon to resolve.”

Tropea v. Tropea, 665 N.E.2d 145, 148 (N.Y. 1996). As one commentator has noted,

Relocation cases are “intractable problems” and the “San

Andreas fault” of family law. When one parent attempts to

move a child a significant distance from the other parent, the

child’s relationship with each parent changes in quality and

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quantity. These “no-win” cases are occurring with increasing

frequency, create enormous tensions for parents and their

children, and burden the legal system and the judges who

have to decide them. A potential relocation can generate

conflict in cases where there had been none before, reopen

old wounds in others, or exacerbate an already highly-

conflicted situation.

Elrod, Linda D., National and International Momentum Builds for More Child Focus in

Relocation Disputes, 44 Fam. L.Q. 341, 341-42 (2010). Unfortunately, such cases are

increasingly common.1 In this case, Father contends that Mother’s relocation to Virginia

is a material change of circumstances warranting modification of custody.

[¶13] As a general rule, the provisions of a divorce decree, including those pertaining to

child custody, are subject to the doctrine of res judicata, which bars litigation of issues

that were or could have been determined in a prior proceeding. Mentock v. Mentock, 638

P.2d 156, 158 (Wyo. 1981). Res judicata “is mandated by public necessity; there must be

an end to litigation at some point, or else the legal system would become so bogged down

that nothing would ever remain decided.” Id. This Court has recognized, however, that

application of res judicata to a petition for modification of child custody is not

appropriate where there has been a “material or substantial change in circumstances” with

respect to the initial custody determination. Id. In that instance, res judicata does not

apply because “[the] modification proceeding involves new issues framed by facts

differing from those existing when the original decree was entered. A new adjudication

of the rights of the parties must be made. For all intents and purposes it is a separate and

distinct case from the original proceeding.” Leitner v. Lonabaugh, 402 P.2d 713, 719

(Wyo. 1965).

[¶14] The applicability of res judicata has been functionally incorporated as a threshold

inquiry under Wyo. Stat. Ann. § 20-2-204(c) (LexisNexis 2009), enacted in 2000, which

governs modification of child custody generally. The statute requires a determination

that there has been a material change in circumstances before a court may consider

whether modification of custody is in the best interests of the children:

1

“According to the U.S. Census Bureau, about 1 in 6 Americans moves each year. Approximately 7

million people a year move from state to state. The ‘average American’ makes 11.7 moves in a lifetime.

Because of the ordinary needs of both parents after a marital dissolution to secure or retain employment,

pursue educational or career opportunities, or reside in the same location as a new spouse or other family

or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location.”

In re Marriage of Ciesluk, 113 P.3d 135, 147 (Colo. 2005) (internal citations omitted).

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§ 20-2-204. Enforcement and modification.

...

(c) A court having jurisdiction may modify an order

concerning the care, custody and visitation of the children if

there is a showing by either parent of a material change in

circumstances since the entry of the order in question and

that the modification would be in the best interests of the

children pursuant to W.S. 20-2-201(a). In any proceeding in

which a parent seeks to modify an order concerning child

custody or visitation, proof of repeated, unreasonable failure

by the custodial parent to allow visitation to the other parent

in violation of an order may be considered as evidence of a

material change of circumstances.

(Emphasis added.) We have stated that, pursuant to Wyo. Stat. Ann. § 20-2-204(c),

The district court does not properly acquire jurisdiction to

reopen an existing custody order until there has been a

showing of “a substantial or material change of circumstances

which outweigh society’s interest in applying the doctrine of

res judicata” to a custody order. In short, unless the district

court finds a material change in circumstances, it cannot

proceed to the second step — determining whether a

modification would be in the best interests of the child.

Hanson, ¶ 18, 280 P.3d at 1193 (quoting In re TLJ, 2006 WY 28, ¶ 8, 129 P.3d 874, 876

(Wyo. 2006)) (citations omitted). The burden is on the party seeking modification of a

custody order to prove, first, that there has been a material change in circumstances, and

second, that modification would be in the best interests of the children. Hanson, ¶19, 280

P.3d at 1193.

[¶15] The present case relates to the threshold inquiry under Wyo. Stat. Ann. § 20-2-

204(c): whether relocation of a custodial parent may constitute a material change in

circumstances sufficient to warrant consideration of whether modification of custody is in

the best interests of the children. Because relocation of a custodial parent is not

addressed in Wyo. Stat. Ann. § 20-2-204, or in any other provision of the domestic

relations code, our analysis is guided by relevant case law. Father asks us to hold,

contrary to established precedent, that relocation of a custodial parent may constitute a

material change in circumstances warranting the district court’s consideration of the best

interests of the children. In order to facilitate our discussion of the issues presented, we

begin by setting forth a brief history of our precedent relating to modification of child

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custody based on a custodial parent’s relocation.

[¶16] This Court’s first occasion to consider modification of child custody based on the

possible relocation of a custodial parent arose in Martin v. Martin, 798 P.2d 321 (Wyo.

1990). In that case, both parents remained in Laramie at the time of their divorce, and the

divorce decree specified that each parent would have physical custody of the children for

six months of the year. Id. The divorce decree further specified, however, that if either

parent relocated from Laramie, the relocating parent would have custody for three

months, and the remaining parent would have custody for nine months. Id. at 321-22.

On appeal, this Court held that inclusion of the provision for automatic future

modification of child custody was an abuse of discretion, noting that child custody

determinations are based on the best interests of the children, and that such a

determination cannot be made absent “all facts necessary to make such a determination.”

The district court’s anticipatory conclusion that the

best interest of the children will be served by a nine-

month/three-month split in favor of the parent remaining in

Laramie is an abuse of discretion. As noted above, the test

for child custody is the best interests of the children, and such

a decision cannot be made without the district court having

before it all facts necessary to make such a determination.

What those facts may be, if and when one or the other parent

leaves Laramie, can only be pure speculation at this point in

time. Such speculation is not a substitute for complete

analysis of all existing circumstances when and if a change in

the established child custody arrangement becomes necessary.

Id. at 323.

[¶17] The Court’s next opportunity to consider a modification of custody based on

relocation was presented in Love v. Love, 851 P.2d 1283 (Wyo. 1993). In that case, the

custody arrangement provided that mother would have physical custody of the parties’

two children while school was in session, and that father would have physical custody

during the summer. Id. at 1284. The divorce decree incorporated a stipulation of the

parties that “the residence of the children will not be changed to a place beyond the radius

of 100 miles from the City of Sheridan, Wyoming, unless both parents consent thereto or

unless an order . . . has been entered approving such change.” Id. at 1285. Mother

subsequently sought an order to show cause as to why she should not be allowed to

change her residence and that of her children to Sioux Falls, South Dakota. Id. In

response, father claimed that mother’s relocation was a sufficient change of

circumstances to warrant modification of custody. Id. The district court held a hearing

on mother’s application for a change of residence, at which it received testimony from

the parents and from a psychologist who expressed his opinion as to the custodial

7

arrangement that would promote the best interests of the children. Id. The psychologist

testified that the parties’ 15-year-old son was capable of making “a reasonable decision in

his own best interest,” but that it would be in the 11-year-old daughter’s best interests “to

have predominant contact with her mother.” Id. The district court determined that “the

residence of the minor children of the parties may be changed to a place beyond the

radius of 100 miles from [Sheridan, to Sioux Falls].” Id. at 1286.

[¶18] On appeal, this Court affirmed the district court’s decision with respect to the

parties’ daughter. Love, 851 P.2d at 1291. Because the discussion in Love provides the

foundation for Wyoming’s jurisprudence relating to modification of child custody based

upon relocation of a custodial parent, we set forth portions of that decision at length:

This court’s test to determine custody is well

established. We have said that the “goal to be achieved is a

reasonable balance of the rights and affections of each of the

parents, with paramount consideration being given to the

welfare and needs of the children.” Leitner v. Lonabaugh,

402 P.2d 713, 720 (Wyo. 1965); See also, Fanning v.

Fanning, 717 P.2d 346, 353 (Wyo. 1986); Bereman v.

Bereman, 645 P.2d 1155[, 1160] (Wyo. 1982); Ayling v.

Ayling, 661 P.2d 1054, [1056] (Wyo. 1983); Yates v. Yates,

702 P.2d 1252, 1256 (Wyo. 1985).

...

Cases involving relocation of parents are fact sensitive;

we would be remiss to attempt to define a bright line test for

their determination. Where the issue is relocation of one of

the parties, we must remember that the best interests of the

child standard was applied at the time of the initial custody

award. Therefore, our review looks more closely at balancing

the continued rights of the parties with the best interests of the

children as established at the time of divorce. We will

consider the attributes and characteristics of the parents and

children and how the children have fared under the original

custody and visitation arrangement. We will consider also

whether the relocating parent’s motives for proposing the

move are legitimate, sincere, in good faith, and whether

reasonable visitation is possible for the remaining parent.

See, Arquilla [v. Arquilla], 407 N.E.2d [948,] 950 [(Ill. App.

1980)]; Holder v. Polanski, 111 N.J. 344, 544 A.2d 852, 855

(N.J. 1988).

8

...

The district court did not make comparisons between

the children’s current schools and the Sioux Falls school

system but concluded that the children “will do equally well

whether they are in Sheridan or Sioux Falls, or probably if

they were anyplace they’re going to do equally well.” In this

context, we agree with a Michigan court which stated:

“‘We live in a transient society. With respect to the

best interests of a child, state boundaries are artificial

and meaningless; there is no presumption that bringing

up a child in Michigan has any advantage (or

disadvantage) over Missouri or Georgia, or any other

state. To conclude otherwise would be a meaningless

generalization. Restrictions upon where a custodial

parent may live, in terms of geography, are not

realistic. In every state there are good and bad places

to bring up a child.’”

DeGrow v. DeGrow, 112 Mich. App. 260, 315 N.W.2d 915,

918 (Mich. App. 1982) (quoting Hutchins v. Hutchins, 84

Mich. App. 236, 269 N.W.2d 539, 540 (Mich. App. 1978)

(Beasley, J., concurring)). This statement surely applies to

comparisons between Wyoming and South Dakota as well.

The test we will utilize in relocation cases is most

similar to that espoused in Arquilla. We agree:

It would be incongruous for a court, when presented

with a custodial order originally based upon the best

interests of the child, to refuse to support the efforts of

the custodial parent to maintain and enhance their

standard of living, albeit in another jurisdiction. So

long as the court is satisfied with the motives of the

custodial parent in seeking the move and reasonable

visitation is available to the remaining parent, removal

should be granted.

Arquilla, 407 N.E.2d at 950.

We acknowledge that mother’s plans at this time are

speculative; she has not enrolled herself or her children in

9

school, purchased a home or identified employment

opportunities in Sioux Falls. Her previous employment in

Sheridan, however, was not long term, found to be

unappealing and in less than three years her alimony support

will terminate. Mother has identified what she believes to be

a positive solution to these problems: relocation to Sioux

Falls.

To this discussion we add the consideration of whether

an “established custodial environment continues to exist

despite a change in the children’s domicile.” DeGrow, 315

N.W.2d at 917. This situation has been defined as one that

emphasizes the continuity and strength of an

established relationship between a custodian and a

child. The custodial environment is the family unit

which cannot be destroyed by a simple change in

geographic location. The family unit still will be

preserved in the new domicile.

DeGrow, 315 N.W.2d at 918.

As the district court recognized, despite a change in

residence, there is no reason to suggest that mother will not

continue to provide a caring, nurturing environment for her

children. We agree that [the parties’ daughter] should stay

with her mother. This part of the district court’s decision is

supported by the testimony of Dr. Leugers and mother who

identified [the daughter’s] emotional needs in this area.

Father also raises the issue of problematic visitation if

mother is to move. He stated that his weekend visitation

would be “non-existent” because of the distance between the

two towns. Father’s change in visitation due to mother’s

relocation is unfortunate, but not an unusual result of divorce.

Nelson v. Card, 162 Colo. 274, 425 P.2d 276, 278 (Colo.

1967). We agree that a court

should not insist that the advantages of the move be

sacrificed and the opportunity for a better and more

comfortable life style for the mother and children be

forfeited solely to maintain weekly visitation by the

father where reasonable alternative visitation is

10

available and where the advantages of the move are

substantial.

D'Onofrio [v. D’Onofrio], 365 A.2d [27,] 30 [(N.J. 1976)].

Mother’s motive for wanting to relocate is legitimate, sincere

and in good faith. Though the details of the move have not

been fleshed out, the district court was convinced that

mother’s exceptional parenting would continue in another

locale. The record does not disclose whether either party

contemplated an alternative to the current visitation

arrangement. However, more than inconvenience to the

noncustodial parent must be shown to defeat the custodial

parent’s right to relocate. Cooper v. Cooper, 99 N.J. 42, 491

A.2d 606, 614 (N.J. 1984). This court recently upheld a

complex and somewhat restrictive visitation schedule for the

father of two young children who were in the custody of their

mother, living in Las Vegas. In that case we underscored that

establishment of visitation schedules is within the sound

discretion of the district court. Rowan v. Rowan, 786 P.2d

886, 891 (Wyo. 1990). Though visitation for father may be

more difficult, it is still within the bounds of reason.

...

We discern no abuse of discretion by the district court

in permitting mother to relocate with the youngest child.

Love, 851 P.2d at 1287-89 (italics in original).

[¶19] With respect to the district court’s decision as it pertained to the parties’ son,

however, this Court reached a different conclusion. We reversed the district court’s

decision to maintain the same custodial arrangement with respect to the parties’ son

based on the court’s failure to “acknowledge and give weight to his wishes” regarding

geographic preference. Id. at 1291.

Considering the preferences of children in custody

matters, we have said that “the preference of a child of

sufficient age and maturity is a factor to be considered by a

court in ascertaining what is in the child’s best interests.”

Roberts [v. Vilos], 776 P.2d [216,] 218 [(Wyo. 1989)].

Though this is one factor to consider, “such preference is not

conclusive.” Yates v. Yates, 702 P.2d 1252, 1255 (Wyo.

1985). In the few cases in which we have deliberated this

11

issue, we have provided the following quote which still aptly

applies:

Such we think is the general rule; for, if the happiness

and welfare of the infant is to be consulted, nothing

could be more potent upon that question than the

expression of [the child’s] preference based upon

kindness or unkindness, care or want of care, love and

affection or want thereof, and, as to the surrounding

conditions, either with one or the other.

Yates, 702 P.2d at 1256 (quoting Tytler v. Tytler, 15 Wyo.

319, 338, 89 P. 1, 6 (1907)).

It appears to be the almost universal rule that at least

when a child is of sufficient age, intelligence, and

discretion to exercise an enlightened judgment as to

[the child’s] future welfare, based upon facts and not

mere whims, [the child’s] wishes are one factor which

may be considered by the court in determining

custody, in doubtful cases in any event, usually not

because of any legal right in the child to have [the

child’s] wishes granted, but because the consideration

of such wishes will aid the court in making a custodial

decree which is for the best interests and welfare of the

child.

Yates, 702 P.2d at 1256 (quoting Annotation, Child’s Wishes

as a Factor in Awarding Custody, 4 A.L.R. 3d 1396, 1402

(1965 & Supp. 1992)). See also, Douglas v. Sheffner, 79

Wyo. 172, 331 P.2d 840, 844 (Wyo. 1958).

Love, 851 P.2d at 1289-90. Noting that an abuse of discretion occurs when “a material

factor deserving significant weight is ignored,” this Court found that the district court’s

failure to weigh the son’s geographic preference in determining which party should be

awarded primary physical custody was an abuse of discretion. Id. at 1291.

[¶20] The Court took Wyoming’s relocation jurisprudence a step further in Watt. In that

case, mother was granted primary physical custody of the parties’ three children. Id., 971

P.2d at 610. However, the divorce decree provided for an automatic change in custody

from mother to father if mother moved more than fifty miles from Upton, Wyoming,

where the parties resided. Id. After mother was accepted into the pharmacy program at

the University of Wyoming, she sought modification of the divorce decree in order to

12

allow her to pursue her degree in Laramie. Id. Father opposed the modification and

requested that custody be awarded to him based on the automatic change in custody

provision in the divorce decree. Id. The trial court ruled that it had erred in providing for

an automatic change of custody in the decree and refused to invoke it. Id. Nonetheless,

the district court found a material change in circumstances based on mother’s relocation

and found that the children’s best interests would be served by remaining with their father

in Upton. Id. at 612.

[¶21] On appeal, this Court began its review with a discussion of Love, placing emphasis

on that opinion’s pronouncement, in a quotation from Arquilla, that “So long as the court

is satisfied with the motives of the custodial parent in seeking the move and reasonable

visitation is available to the remaining parent, removal should be granted.” Watt, 971

P . 2 d a t 614 (emphasis omitted). The Court pronounced that “Relocation as a

substantial and material change in circumstances was foreclosed by the decision in Love.

Our decision established a strong presumption in favor of the right of a custodial

parent to relocate with her children, assuming that the criteria articulated in Love are

satisfied.” Id. (emphasis added). In determining that the trial court abused its discretion

in finding a material change in circumstances based on mother’s relocation, Watt held

that “a relocation, by itself, is not a substantial or material change in circumstances

sufficient to justify a change in custody order.” Id. The decision focused heavily on the

custodial parent’s right to travel, reasoning as follows:

The constitutional question posed is whether the rights

of a parent and the duty of the courts to adjudicate custody

serve as a premise for restricting or inhibiting the freedom to

travel of a citizen of the State of Wyoming and of the United

States of America. We hold this to be impossible. The right

of travel enjoyed by a citizen carries with it the right of a

custodial parent to have the children move with that parent.

This right is not to be denied, impaired, or disparaged unless

clear evidence before the court demonstrates another

substantial and material change of circumstance and

establishes the detrimental effect of the move upon the

children. See In re Marriage of Burgess, 13 Cal. 4th 25, 51

Cal. Rptr. 2d 444, 913 P.2d 473, 480 (1996) and Matter of

Marriage of Greene, 107 Ore. App. 338, 812 P.2d 11, 11

(1991). While relocation certainly may be stressful to a child,

the normal anxieties of a change of residence and the inherent

difficulties that the increase in geographical distance between

parents imposes are not considered to be “detrimental”

factors. Cf. In re Marriage of Sheley, 78 Wash. App. 494,

895 P.2d 850, 856 (1995), overruled on other grounds by In

re Marriage of Littlefield, 133 Wash. 2d 39, 940 P.2d 1362,

13

1371 (Wash. 1997) and Janet M. Bowermaster, Sympathizing

with Solomon: Choosing Between Parents in a Mobile

Society, 31 U. Louisville J. Fam. Law 791, 799 (1992-93).

The sound policy reasons which support this analysis

were articulated by the Supreme Court of California:

As this case demonstrates, ours is an increasingly

mobile society. Amici curiae point out that

approximately one American in five changes

residences each year. Economic necessity and

remarriage account for the bulk of relocations.

Because of the ordinary needs for both parents after a

marital dissolution to secure or retain employment,

pursue educational or career opportunities, or reside in

the same location as a new spouse or other family or

friends, it is unrealistic to assume that divorced parents

will permanently remain in the same location after

dissolution or to exert pressure on them to do so. It

would also undermine the interest in minimizing costly

litigation over custody and require the trial courts to

“micromanage” family decisionmaking by second-

guessing reasons for everyday decisions about career

and family.

In re Marriage of Burgess, 913 P.2d at 480-81 (emphasis in

original). An inhibition upon the right to travel is never

imposed upon the non-custodial parent who is free to move at

will despite the location of the children. The motives of the

non-custodial parent will not be questioned by the court with

respect to such relocation, and the custodial parent has no

power to inhibit it. The inherent inequities of such a situation

stand as an additional reason that courts have concluded that

custodial parents should be permitted to move with their

children. In re Marriage of Francis, 919 P.2d 776, 784 (Colo.

1996); D’Onofrio, 365 A.2d at 30.

Mr. Watt, as the non-custodial parent in this situation,

was required to carry the burden of demonstrating that a

material and substantial change of circumstances had

occurred, sufficient to justify the trial court in ordering a

change in custody. He did not meet that burden other than by

establishing the relocation, which we hold, as a matter [of]

14

law, is not, without more, a material and substantial change of

circumstances for purposes of invoking Wyo. Stat. § 20-2-

113(a) (Repl. 1994). “‘[A] party must show, in addition to

the existence and extent of the change, that the change is

significant in relation to the modification sought.’” Stevens

v. Collard, 837 P.2d 593, 596 (Utah App. 1992), cert. denied,

862 P.2d 1356 (Utah 1993) (quoting Becker v. Becker, 694

P.2d 608, 610 (Utah 1984)) (emphasis in original).

In light of our prior cases, and our concern for

the protection of constitutional liberties of the citizens of the

State of Wyoming, we hold that an intrastate relocation by a

custodial parent, taking the children along, cannot by itself be

considered a change in circumstances sufficiently substantial

and material to justify reopening the question of custody. In

various ways, several of our sister jurisdictions have adopted

this rule. E.g., Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d

299, 304-05 (1991); Matter of Marriage of Duckett, 137 Ore.

App. 446, 905 P.2d 1170, 1172 (1995); Matter of Marriage of

Greene, 812 P.2d at 11-12; and Fossum v. Fossum, 1996 SD

38, 545 N.W.2d 828, 832-33 (S.D. 1996).

This precept also applies to factors that are derivative

of the relocation. The custodial parent’s right to move with

the children is constitutionally protected, and a court may not

order a change in custody based upon that circumstance

alone. Some other change of circumstances, together with

clear evidence of the detrimental effect of the other change

upon the children, is required. Such a circumstance

necessarily would have to be sufficiently deleterious to the

welfare of the children that by itself it would serve as a

substantial and material change in circumstances even in the

absence of a relocation.

The trial judge in this case changed custody from Mrs.

Watt to Mr. Watt based upon Mrs. Watt’s move to Laramie.

The other factors articulated by the trial court, such as Mrs.

Watt’s alleged previous interest in seeing her children

brought up in Upton; the relocation of the maternal

grandparents to Upton; or Mrs. Watt’s status as a student do

not, together or separately, constitute a material and

substantial change in circumstances to justify the order of the

trial court. Those circumstances are examples of those

15

factors, clearly related to and derivative of the relocation,

which have no negative impact upon the welfare of the

children. Mrs. Watt moved to Laramie for legitimate, sincere,

and good faith reasons, and Mr. Watt is seeking to obtain

custody of his sons for legitimate, sincere, and good faith

reasons. No evidence in the record shows the move is

detrimental to the children, unless it be the speculative

suggestion by the trial court that a concern exists as to Mrs.

Watt’s status as a student in a discipline that is a difficult

undertaking and its detraction from her ability to rear her

children.

Reasonable visitation remains possible, even if that

visitation might be less than what Mr. Watt previously

enjoyed. Visitation can be resolved by the appropriate

exercise of the broad discretion of the trial court to modify

orders with respect to contact and visitation in order to

minimize the loss of contact and visitation between children

and the non-custodial parent. Relocation indeed is a ground

for such a modification. It is not a ground for modifying

custody. Without the presence of a material and substantial

change in circumstance to justify a change in custody in this

case, the trial court should not have considered the issue.

Watt, 971 P.2d at 615-17.

[¶22] Although Watt has been cited with approval in several of this Court’s subsequent

decisions, the results reached in those cases were not dependent upon application of the

presumption in favor of the relocating, custodial parent established in Watt. See Hanson,

¶ 36, 280 P.3d at 1197-98 (affirming denial of father’s petition to modify custody after

noting that “Given that Mother had returned to Wyoming by the time of trial and that

Father did not request consideration of his own relocation, the parties’ respective

relocations outside Wyoming were not factors for the district court’s consideration in

determining whether there had been a material change in circumstances. We therefore do

not give the relocations any further consideration.”); Zupan, ¶¶ 35-36, 230 P.3d at 338-

39; Testerman v. Testerman, 2008 WY 112, 193 P.3d 1141 (Wyo. 2008); Morris v.

Morris, 2007 WY 174, 170 P.3d 86 (Wyo. 2007); TW v. BM, 2006 WY 68, 134 P.3d

1262 (Wyo. 2006); Harshberger v. Harshberger, 2005 WY 99, 117 P.3d 1244 (Wyo.

2005); and Resor v. Resor, 987 P.2d 146 (Wyo. 1999).

[¶23] In at least one case decided after Watt, we have suggested that a relocation, by

itself, may constitute a material change in circumstances. In JRS v. GMS, 2004 WY 60,

90 P.3d 718 (Wyo. 2004), father was initially awarded custody of the parties’ two older

16

children, and mother was awarded custody of the two younger children. Father filed a

petition to modify custody, asserting that mother’s relocation to South Dakota and her

failure to cooperate in permitting visitation constituted a material change in

circumstances. Id., ¶¶ 3-5, 90 P.3d at 719-20. Father asserted that it was in the best

interests of the younger children to be in his custody. Id., ¶ 5, 90 P.3d at 720. Mother,

however, also sought modification of the custodial arrangement so that she would have

custody of the parties’ two older children. Id., ¶ 6, 90 P.3d at 720. Evidence indicated

that the children’s stepmother and mother’s fiancé had abused the children. Id., ¶ 9, 90

P.3d at 722. The district court denied the petitions to modify custody, finding no material

change in circumstances. On appeal, this Court reversed, concluding that a number of

factors, including mother’s relocation, constituted a change in circumstances:

We are unable to agree with the district court that

there was not a material change in circumstances in this

case. Mother’s relocation to South Dakota might well have

been viewed as a material change. The testimony the

district court heard was that the unusual custody

arrangements to which these parents agreed (it was not

fashioned by the district court), worked only so long as the

parents both resided in Crook County and were close

enough to each other to make it functional. It did not work

once Mother was in South Dakota, sometimes without a car

to transport the children, and Father was not free, nor was

he always able, to travel to South Dakota to facilitate

visitation. That Mother’s fiance, and her brother, were

accused of sexually assaulting the parties’ youngest daughter

also might well have been viewed as a material change of

circumstances. There was another potential material change

when the youngest children were uprooted from Mother’s

home, and sent to live in Sheridan County with Father’s new

wife, the parties’ two other children, and Stepmother’s three

children. There was likely a material change of circumstance

when all four children were taken from their home and placed

in DFS custody (in a group home) as a result of Stepmother’s

abusive acts against the children. There were potential

material changes of circumstance when the children were

placed in the custody of Father’s mother and stepfather, and

when Father was finally accorded full custody again, with his

mother and stepfather providing a backup for Father. This

list of changes in circumstances is not meant to be

exhaustive. While any one of them might well have served

to require the district court to reconsider a more suitable

custodial arrangement for the children, the totality of these

17

circumstances requires a remand for the district court to

fully address the needs of these children with respect to

custody. For a more complete discussion, see George A.

Locke, Change in Circumstances Justifying Modification of

Child Custody Order, 6 POF 2d 499 (1975 and Supp. 2001).

However, a material change of circumstance does not

automatically equate with a change in custody. Custody must

be arranged so as to be in the best interests of the child(ren)

on an individualized basis. Given all that has occurred since

the divorce, the district court needs to reassess the wisdom of

the divided custody arrangement in light of the material

changes in circumstances that have occurred. Although the

parties agreed to that arrangement, they did so under

circumstances that no longer exist. Moreover, the record does

not reflect that the district court assessed the advisability of

the arrangement at the outset. We agree that the district court

should not have to “micro-manage” the custody arrangement.

The district court adopted a “PARENTAL COOPERATION”

standard in the initial decree and, in light of the rather serious

problems faced by this family, some additional management,

as suggested by the GAL, may well be in order. It is evident

from the record that the juvenile proceedings in Sheridan

County had not yet ended when the district court entered the

order now before us. One gap in that process appeared to be

an assessment of Mother’s home. It is evident that the

children have expressed a preference as to where they want to

live, and the district court should take that into consideration

as well. It also appears that by now the juvenile matter in

Sheridan may have developed additional information that is

pertinent to the most desirable custody arrangement for the

children and it is important for the district court to have all

that information available to it.

Id., ¶¶ 12-13, 90 P.3d at 723-24 (emphasis added). Against this background, we turn to a

discussion of the issues presented in this appeal.

[¶24] In his first issue, Father claims that our precedent relating to modification of

custody based on a relocation of a custodial parent has addressed only those situations in

which the custodial parent relocates within the state. He suggests we should hold, as a

matter of first impression, that an interstate, as opposed to an intrastate, relocation by the

primary custodial parent may constitute a material change in circumstances sufficient to

justify a modification of custody. We find no merit in that suggestion.

18

[¶25] As we noted in Love, in which the mother relocated from Sheridan, Wyoming to

Sioux Falls, South Dakota,

With respect to the best interests of a child, state boundaries

are artificial and meaningless; there is no presumption that

bringing up a child in Michigan has any advantage (or

disadvantage) over Missouri or Georgia, or any other state.

To c o n c l u d e o t h e r w i s e w o u l d b e a m e a n i n g l e s s

generalization. Restrictions upon where a custodial parent

may live, in terms of geography, are not realistic. In every

state there are good and bad places to bring up a child.

Id., 851 P.2d at 1288. There is nothing inherent in the act of crossing state boundaries

that informs a determination as to whether there has been a “material change of

circumstances” warranting a modification of child custody. A simple hypothetical

illustration makes the point. An interstate relocation from Jackson, Wyoming to Victor,

Idaho involves a distance of 25 miles, whereas an intrastate relocation from Jackson to

Cheyenne, Wyoming, involves a distance of over 400 miles. In determining whether a

material change of circumstances has occurred the intrastate/interstate distinction is

meaningless.

[¶26] In his second issue, Father claims that our precedent, which establishes a strong

presumption in favor of the relocating parent, does not adequately account for his

constitutional right to raise his children. Father asserts that “The clear multi-

jurisdictional trend in relocation cases is one that favors an approach that balances the

fundamental constitutional rights of the parties in order to arrive at a solution that

respects the rights of both parents, but holds paramount the best interests of the children.”

He urges us to follow this trend, and to overrule Watt’s holding that a relocation cannot

by itself constitute a material change in circumstances sufficient to warrant consideration

of the best interests of the children.

[¶27] Mother responds by asserting that Father’s constitutional claim was not raised

below and, consequently, should not be considered on appeal. In the alternative, Mother

contends that we should uphold Wyoming precedent pursuant to the doctrine of stare

decisis. She asserts that “Father does not have a [c]onstitutional right to raise his children

which is superior to Mother’s own [c]onstitutional right as the custodial parent,” and that

“[t]he right of [M]other to associate with her children in their new familial configuration

is important and should be respected.” Mother does not dispute that most jurisdictions

follow the rule recognizing that a relocation may constitute a material change of

circumstances sufficient to justify a modification of custody. She notes, however, that

“our own legislature has not adopted statutory presumptions for or against relocation, nor

has it determined that [] a noncustodial parent’s rights trump those of a custodial parent.”

19

As a corollary, Mother asserts that this Court “should not adopt a new standard based on

the examples of other states and other, differing statutes.”

[¶28] As an initial matter, we will briefly address Mother’s claim that this issue should

not be addressed because it was not raised in the district court. Mother is correct that we

generally do not consider issues raised for the first time on appeal. Nodine v. Jackson

Hole Mt. Resort Corp., 2012 WY 72, ¶ 19 n.2, 277 P.3d 112, 117 n.2 (Wyo. 2012). In

the present case, however, Father’s arguments below clearly addressed the competing

parental interests at issue, as recognized by the district court:

In this case, [Father] presented evidence that [Mother’s] move

to Virginia will undoubtedly change the nature of his close

daily relationship with his daughters. The Court is moved by,

and sympathetic to, [Father’s] argument. Both parties are

top-shelf parents and [Father] appears to be an extremely

loving and very participatory father. The law in Wyoming at

this time, however, weights more in favor of a custodial

parent’s right to reasonably relocate, and less in favor of a

non-custodial parent’s right to maintain the same visitation

situation and close relationship that may be fostered in the

absence of a move.

The district court’s order acknowledges that it is bound by Wyoming precedent, and that

it was required to follow this Court’s existing jurisprudence establishing a presumption in

favor of the relocating parent. The continued viability of that precedent is properly raised

in this appeal.

[¶29] Although our jurisprudence recognizes a strong interest in adhering to past

precedent under the doctrine of stare decisis, we have noted that departure from

precedent is sometimes appropriate. SLB v. JEO (In the Interest of ANO), 2006 WY 74, ¶

6, 136 P.3d 797, 799 (Wyo. 2006). In considering whether to overrule a prior decision,

We consider the doctrine of stare decisis to be an

important p r i n c i p l e w h i c h f u r t h e r s t h e “evenhanded,

predictable, and consistent development of legal principles,

fosters reliance on judicial decisions, and contributes to the

actual and perceived integrity of the judicial process.”

Nevertheless, we should be willing to depart from

precedent when it is necessary “to vindicate plain, obvious

principles of law and remedy continued injustice.” When

precedential decisions are no longer workable, or are poorly

reasoned, we should not feel compelled to follow precedent.

20

Stare decisis is a policy doctrine and should not require

automatic conformance to past decisions.

Id. (quoting Goodrich v. Stobbe, 908 P.2d 416, 420 (Wyo. 1995)). In light of Father’s

contention that our precedent impinges on his fundamental parental rights and the rights

of the state in providing for the best interests of the children, we will proceed to

reexamine our decision in Watt.

[¶30] We begin our analysis by identifying the competing rights and interests at stake in

a case involving modification of child custody based on the relocation of a custodial

parent. First, as this Court properly recognized in Watt, the custodial parent has a right of

travel worthy of protection. Id., 971 P.2d at 615. Importantly, however, the custodial

parent’s right to travel is not the only interest deserving of protection in relocation cases.

The minority time parent in a shared custody arrangement has an equally important

fundamental right of familial association. Michael v. Hertzler, 900 P.2d 1144, 1147

(Wyo. 1995).

[W]e have repeatedly held that, “‘[t]he right to associate with

one’s immediate family is a fundamental liberty protected by

the state and federal constitutions.’ . . . Resolution of which

parent shall have custody necessarily implicates the

fundamental right of family association.”

FML v. TW, 2007 WY 73, ¶ 6, 157 P.3d 455, 459 (Wyo. 2007) (quoting Loghry v.

Loghry, 920 P.2d 664, 667 (Wyo. 1996)). Further, just as parents have a fundamental

right to associate with their children, “Children have as fundamental a right to familial

association [with their] parents.” LM v. Laramie County Dep’t of Family Servs. (In re

MN), 2007 WY 189, ¶ 7, 171 P.3d 1077, 1081 (Wyo. 2007).

[¶31] Additionally, the state has a compelling interest in promoting the best interests of

the children. Michael, 900 P.2d at 1149. As we noted in Cosner v. Ridinger, 882 P.2d

1243, 1247 (Wyo. 1994), the best interests of the child are of “paramount concern” in

decisions relating to child custody:

Wyoming has adopted as its public policy a paramount

concern for the best interests of the child in connection with

child support, custody, and visitation. That policy is

articulated in WYO. STAT. § 20-2-113 (Cum. Supp. 1993)2,

2

Wyo. Stat. Ann. § 20-2-113 has been repealed and replaced by Wyo. Stat. Ann. § 20-2-201, et seq.

Wyo. Stat. Ann. § 20-2-201 retains the “best interests of the child” standard: “In granting a divorce,

21

which states in pertinent part:

(a) In granting a divorce or annulment of a marriage,

the court may make such disposition of the children as

appears most expedient and beneficial for the well-

being of the children. . . . If the court finds that both

parents have shown the ability to act in the best

interest of the child, the court may order any

arrangement that encourages parents to share in the

rights and responsibilities of rearing their children. . . .

The court which entered the decree has continuing

subject matter and personal jurisdiction to enforce

or revise the decree concerning the care, custody,

visitation and maintenance of the children as the

circumstances of the parents and the benefit of the

children requires. . . . The court shall consider

evidence of spouse abuse or child abuse as being

contrary to the best interest of the child. (Emphasis

added.)

Notably, in Cosner, we cited Martin, 798 P.2d 321, and Love, 851 P.2d 1283, in stating

that “Our cases echo this overriding interest in the best interests of the child in connection

with child support and custody determinations.” Cosner, 882 P.2d at 1248. In Basolo v.

Basolo, 907 P.2d 348, 354 (Wyo. 1995), we again emphasized that the best interests of

the children are of overriding importance, and that they take precedence over the

fundamental rights of parents:

In the wreckage of any marriage, . . . vindication of parental

rights shall not be lavished at the expense of the “paramount

purpose” of serving the welfare and best interests of the child.

Laughton v. Laughton, 71 Wyo. 506, 529, 259 P.2d 1093,

1103 (1953). Recognition that parental rights are fundamental

does not alter the cardinal rule that when the rights of a parent

and the rights of a child collide, it is the rights of the parent

which must yield. Matter of MLM, 682 P.2d 982, 990 (Wyo.

1984); Stirrett v. Stirrett, 35 Wyo. 206, 222, 248 P. 1, 5

separation or annulment of a marriage or upon the establishment of paternity pursuant to W.S. 14-2-401

through 14-2-907, the court may make by decree or order any disposition of the children that appears

most expedient and in the best interests of the children.”

22

(1926).

Similarly, in Stonham v. Widiastuti, 2003 WY 157, ¶ 17 n.8, 79 P.3d 1188, 1194 n.8

(Wyo. 2003), where mother sought to return to Indonesia with her children, we stated that

Despite the factual differences in [custody cases involving

distant relocations], there is one common analytical thread in

virtually every case: the best interest of the child is paramount

in any award of custody and visitation, and the trial court has

a large measure of discretion in making that award. Whether

one parent is moving with the children across town or

across the world, the analysis remains the same.

(Emphasis added.)

[¶32] Despite this clear Wyoming authority recognizing both the minority time parent’s

right to parent and the state’s compelling interest in promoting the best interests of the

children in child custody cases, these interests did not receive attention or consideration

in Watt. As noted above, this Court’s holding in Watt was very explicitly, and

exclusively, grounded in the custodial parent’s right to travel:

The constitutional question posed is whether the rights

of a parent and the duty of the courts to adjudicate custody

serve as a premise for restricting or inhibiting the freedom to

travel of a citizen of the State of Wyoming and of the United

States of America. We hold this to be impossible. The right

of travel enjoyed by a citizen carries with it the right of a

custodial parent to have the children move with that parent.

This right is not to be denied, impaired, or disparaged unless

clear evidence before the court demonstrates another

substantial and material change of circumstance and

establishes the detrimental effect of the move upon the

children.

Id., 971 P.2d at 615-16. In Watt, we seemed to marginalize both a parent’s and a child’s

right to familial association, as well as the state’s interest in the welfare of children, when

we stated that “the normal anxieties of a change of residence and the inherent difficulties

that the increase in geographical distance between parents imposes are not considered to

be ‘detrimental’ factors.” Id. at 616.

[¶33] Although Watt found that this Court’s decision in Love had created “a strong

presumption in favor of the right of a custodial parent to relocate with her children,” we

can discern no such presumption issuing from that decision. Rather, in Love, 851 P.2d at

23

1287, the Court noted that the goal to be achieved in child custody cases “is a reasonable

balance of the rights and affections of each of the parents, with paramount consideration

being given to the welfare and needs of the children.” In addition, noting that the “best

interests” standard is applied in an initial custody determination, the Court stated that, in

a modification case, “our review looks more closely at balancing the continued rights of

the parties with the best interests of the children as established at the time of divorce.”

Id., 851 P.2d at 1288 (emphasis added). In describing this review, the Court identified

additional, non-exclusive factors that inform a determination as to whether modification

of custody is warranted, including “the attributes and characteristics of the parents and

children and how the children have fared under the original custody and visitation

arrangement,” “the relocating parent’s motives for proposing the move,” and “whether

reasonable visitation is possible for the remaining parent.” Id. Importantly, nothing in

that decision indicates that the custodial parent’s right to travel is entitled to a privileged

position in “balancing the continued rights of the parties.” Indeed, the Court implicitly

rejected any presumption in favor of either parent in stating that “Cases involving

relocation of parents are fact sensitive; we would be remiss to attempt to define a bright

line test for their determination.” Id. at 1287.

[¶34] In holding that a relocation by the custodial parent cannot, by itself, constitute a

material change in circumstances sufficient to warrant a best interests analysis, the Watt

opinion cited Jaramillo, 823 P.2d 299 as supporting authority. In that case, the New

Mexico Supreme Court noted that “In New Mexico, the protection afforded the right to

travel in the child-custody context has been explicitly recognized by both this Court and

the court of appeals,” and found that a parent’s right to relocate should not be burdened

by an adverse presumption against awarding custody to the relocating parent. Id. at 305.

Importantly, however, Watt failed to recognize that the decision in Jaramillo proceeded

immediately to state that “By the same token, we believe that the other parent’s right to

maintain his or her close association and frequent contact with the child should be equally

free from any unfavorable presumption that would place him or her under the burden of

showing that the proposed removal of the child would be contrary to the child’s best

interests.” Id. at 306. The court further stated that “We think that such a presumption is

potentially just as inimical to the child’s best interests as the opposite presumption

favoring the relocating parent,” and noted that

Both presumptions are subject to the following criticism

leveled by the United States Supreme Court several years ago

at “procedure by presumption”:

Procedure by presumption is always cheaper and easier

than individualized determination. But when, as here,

the procedure forecloses the determinative issues of

competence and care, when it explicitly disdains

present realities in deference to past formalities, it

24

needlessly risks running roughshod over the important

interests of both parent and child. It therefore cannot

stand.

Stanley [v. Illinois], 405 U.S. [645,] 656-57, 92 S.Ct. [1208,]

1215[, 31 L.Ed.2d 551 (1972)] (citations omitted).

Jaramillo, 823 P.2d at 307. Echoing this criticism, the court concluded that

[W]e believe that allocating burdens and presumptions in this

context does violence to both parents’ rights, jeopardizes the

true goal of determining what in fact is in the child’s best

interests, and substitutes procedural formalism for the

admittedly difficult task of determining, on the facts, how

best to accommodate the interests of all parties before the

court, both parents and children.

Id. at 305 (emphasis in original).

[¶35] Watt’s reference to Jaramillo for support is especially confusing in light of

Jaramillo’s conclusion that “In almost every case in which the change in circumstances is

occasioned by one parent’s proposed relocation, the proposed move will establish the

substantiality and materiality of the change.” Id. at 309. In a footnote accompanying this

statement, the court noted that

We do not hold that a proposed relocation constitutes a

substantial and material change in circumstances as a matter

of law, but it is difficult to imagine an instance in which a

proposed relocation will not render an existing parenting plan

or custody-and-visitation arrangement unworkable. As the

court of appeals noted, “a distant relocation by one parent will

inevitably trigger a change of circumstances -- the inability of

the parties to implement their parenting agreement.”

Id. at 309 n.9 (citation omitted).

[¶36] In Tropea, 665 N.E.2d 145, New York’s highest court also rejected the use of

presumptions in relocation cases:

[I]t serves neither the interests of the children nor the ends of

justice to view relocation cases through the prisms of

presumptions and threshold tests that artificially skew the

analysis in favor of one outcome or another.

25

. . . [I]n all cases, the courts should be free to consider and

give appropriate weight to all of the factors that may be

relevant to the determination. These factors include, but are

certainly not limited to each parent’s reasons for seeking or

opposing the move, the quality of the relationships between

the child and the custodial and noncustodial parents, the

impact of the move on the quantity and quality of the child’s

future contact with the noncustodial parent, the degree to

which the custodial parent’s and child’s life may be enhanced

economically, emotionally and educationally by the move,

and the feasibility of preserving the relationship between the

noncustodial parent and child through suitable visitation

arrangements.

Id., 665 N.E.2d at 151. See also, Elrod, supra ¶ 12, at 356 (noting that “The clear trend

in the United States seems to be to abandon presumptions and to adopt a ‘best interests of

the child’ test that requires both parents to prove that their position is in the child’s best

interests.”).

[¶37] The approach to modification of custody based on a relocation of a custodial

parent taken in Jaramillo and echoed in Tropea was also adopted by the Supreme Court

of Colorado in In re Marriage of Ciesluk, 113 P.3d 135. In that case, the court

considered, and rejected, the approach taken in Watt:

[The Watt] approach is no different in practice than the

approach in [In re Marriage of] Francis [, 919 P.2d 776] that

we now reject because it effects a presumption in favor of a

custodial parent seeking to relocate. Furthermore, it is

contrary to Colorado’s preferred state policy emphasizing a

fact-driven approach in relocation cases. See § 1 4-10-

129(2)(c). Finally, it ignores the rights of the minority time

parent. For these reasons, we decline to adopt this approach

in Colorado.

Ciesluk, 113 P.3d at 143. The court also declined to adopt the Minnesota approach, as set

forth in LaChapelle v. Mitten (In re L.M.K.O.), 607 N.W.2d 151 (Minn. Ct. App. 2000),

which “elevate[s] the child’s welfare to a compelling state interest, thereby obviating the

need to balance the parents’ competing constitutional rights.” Ciesluk, 113 P.3d at 143.

The Ciesluk court reasoned:

Though consideration of the parents’ competing

constitutional interests is important in relocation cases, the

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conflict is not simply between the parents’ needs and desires.

See Baures v. Lewis, 167 N.J. 91, 770 A.2d 214, 229 (N.J.

2001). Rather, the issue in relocation cases is the extent to

which the parents’ needs and desires are intertwined with the

child’s best interests. See id. Thus, relocation disputes

present courts with a unique challenge: to promote the best

interests of the child while affording protection equally

between a majority time parent’s right to travel and a

minority time parent’s right to parent.

Id., 113 P.3d at 142. Watt’s approach to the issue of relocation, elevating the right to

travel over competing interests, has also been criticized in Fredman v. Fredman, 960

So.2d 52, 58 (Fla. Dist. Ct. App. 2d Dist. 2007) (noting that Watt “fails to take into

consideration the other parent’s fundamental right to parent”) and Braun v. Headley, 750

A.2d 624, 632 (Md. Ct. Spec. App. 2000) (noting that most jurisdictions recognizing the

role of the right to travel in relocation cases “hold that the right to travel is qualified, and

must be subject to the state’s compelling interest in protecting the best interests of the

child,” and that “Only one case, Watt, finds a ‘best interests’ analysis insufficient

recognition of the parental right to travel, and holds that the threshold requirement that a

material change of circumstances exists, which triggers the best interest analysis, cannot

be established merely by proving relocation of the custodial parent.”).

[¶38] On further examination of Watt, we find that its exclusive focus on the custodial

parent’s right to travel is not supported by our earlier precedent, and that the decision, in

holding that a relocation, by itself, cannot constitute a material change in circumstances,

unjustifiably elevates the custodial parent’s right to travel over the competing interests of

the minority time parent and the state’s concern for the best interests of the child.

Although a custodial parent’s right to travel is entitled to protection, this interest must be

weighed against the minority time parent’s right to maintain a close relationship and

frequent contact with his or her children. Further, because the goal in custody cases is to

reach an arrangement that promotes the best interests of the children, the rights of both

parents must be considered only to the extent that they are consistent with that goal.

Ultimately, we agree with the conclusion reached in other jurisdictions that presumptions

in favor of one parent or another are detrimental to the interests of all parties in cases

involving modification of child custody based on relocation of a custodial parent.

[¶39] We note that our conclusion that a relocation may constitute a material change in

circumstances does not conflict with the proper application of res judicata in determining

whether modification of custody is warranted. Clearly, a move by a custodial parent,

especially when the distance from the remaining parent is significant, may create “new

issues framed by facts differing from those existing when the original decree was

entered,” which preclude the application of res judicata. These new facts may include a

change in the ability of the parties to maintain the existing parenting agreement, a change

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in the ability of the children to maintain a close relationship with the remaining parent,

factors affecting quality of life in the new location, the child’s geographic preference, and

the relative merits of available social and educational opportunities in the new location.

On this point, we agree with the Vermont Supreme Court, which has stated that “when

childrearing and its concomitant decision-making are shared, relocation to a remote

location by one parent requires at the very least a reassessment of the custodial

arrangement and, because of the practicalities involved in shared parenting, will often

necessitate a change in custody.” Hoover v. Hoover, 764 A.2d 1192, 1194 (Vt. 2000).

[¶40] In summary, we conclude that Watt’s prohibition against considering relocation as

a factor contributing to a material change in circumstances does not properly account for

the minority time parent’s right to associate with his or her family, the child’s right to

familial association, or the state’s “paramount concern” for promoting the best interests

of the children. With this decision, we explicitly recognize that a relocation by the

primary physical custodian, as well as “factors that are derivative of the relocation” –

including “the inherent difficulties that the increase in geographical distance between

parents imposes” – may constitute a material change in circumstances sufficient to

warrant consideration of the best interests of the children. To the extent this conflicts

with this Court’s holding in Watt, we hereby overrule Watt.

[¶41] Further, based on the facts of the present case, we find that Mother’s relocation to

Virginia, over 2,000 miles away from Father, constitutes a material change in

circumstances. As we have previously noted, however, “a material change of

circumstance does not automatically equate with a change in custody.” JRS, ¶ 13, 90

P.3d at 724. We note that the district court was able to consider a great deal of evidence

bearing on the best interests of the children in addressing the issue of whether there had

been a material change in circumstances. Our concern is that the district court viewed

this evidence through the prism of the presumption in favor of the relocating, custodial

parent that we created in Watt. In light of the district court’s emphasis on this

presumption, which no longer applies, we are unable to determine how the absence of

such a presumption would have impacted the district court’s decision. Accordingly, we

remand for further consideration of this issue with instructions that the district court

consider all relevant facts and circumstances in determining a proper custodial

arrangement that is in the best interests of the children. Because Father is the party

seeking the modification of the custodial arrangement, he has the evidentiary burden of

establishing that a modification of custody is in the best interests of the children.3 We

must emphasize, by this decision, we are not suggesting a particular result. We are only

3

Although some courts have determined that both parents share equally the burden of demonstrating how

a child’s best interests will be served in the relocation, we do not adopt that approach in this case. See,

e.g., In re Marriage of Ciesluk, 113 P.3d at 147; Jaramillo, 823 P.2d at 308.

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requiring that the determination be made by application of the correct legal standard.

[¶42] In light of our decision, we need not address Father’s third issue pertaining to

visitation. We reverse and remand for further proceedings consistent with this opinion.

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