Court of Appeals Affirms Change of Custody Due to Custodial Parent’s Bad Acts
Case: Brand v. Brand, 2020 Ark. App. 505
Trial Court: Jackson County Circuit Court (Judge Tom Garner)
Issue: What level of conduct by a custodial parent is sufficient to: 1) Support a finding of a material change in circumstances, and 2) Support a change of custody in favor of the noncustodial parent?
Holding: The incidents relied on by the trial court, namely a physical attack by the mother against the father, an extremely questionable claim of abuse leading to a DHS investigation, and consistent disregard for the father’s visitation rights as established by the visitation order, all of which contributed to the conclusion that the mother was no longer the proper parent to have primary custody, supported a finding of a material change of circumstances and a change in custody.
Summary:
Julia and Michael married in 2008, had a child, M.B., in 2010, and divorced in July 2016. Julia was awarded custody. Following the divorce, Julia and M.B. resided in Newport (where Michael’s family also lived), and Michael lived in Fayetteville.
Michael filed a motion to modify custody in June 2018. The court held a final hearing on the motion in May 2019. Michael’s case, which included testimony by him, his sister, M.B.’s school counselor, and a witness of one Julia’s instances of ill conduct. In addition to herself, Julia put on testimony from her adult son and her business partner/former brother-in-law. Michael’s witnesses stated the following:
M.B.’s parents have had problems getting on the same page and Julia is hostile toward Michael;
Julia has refused to provide Michael with a schedule of M.B.’s activities, which hinders Michael’s ability to either attend M.B.’s activities or make sure the child gets to them when they are together;
Julia appears to discourage M.B. from having a relationship with his father’s family, despite the fact that they see each other around Newport and attend the same church;
Julia, apparently under the mistaken belief that Michael had gone over his visitation time, confronted Michael at his cabin, spat in his face, and struck him. As a result of this incident, which M.B. witnessed at least some of, Julia faced criminal charges.
A gun misfired while M.B. and Julia were on a hunting trip. Despite the fact that this seems to have caused damage to M.B.’s ears, Julia resisted Michael’s efforts to seek medical treatment for the boy.
Julia reported Michael to DHS for alleged abuse, the investigation of which included an invasive physical examination of M.B. by a DHS employee. The agency concluded that the abuse charge was unsubstantiated.
M.B. has behavioral issues that have gotten worse since his parents’ divorce and that he was in a crucial point in his development.
Julia’s case generally was directed at mitigating the impact of the evidence offered during Michael’s case and offering evidence of Michael’s flaws.
The circuit court ruled in favor of Michael:
[The court issued an order finding] that there had been a material change in circumstances since Michael and Julia’s divorce and that it was in M.B.’s best interest to modify custody to Michael. The court stated that the material change in circumstances was “a course of conduct that has been pursued by [Julia] to disrupt the relationship of [Michael] and [M.B.] and to alienate [M.B.] from [Michael] and [his] family. Further, the continuing actions of [Julia] toward [Michael] have created an unsuitable and tension filled environment for [M.B.].” In making its findings, the court specifically found Julia not to be a credible witness.
Opinion at 8.
Julia’s appellate argument was fairly simple. In addition to arguments based on evidentiary rulings, she argued that the actions of which Michael complained were not so serious as to justify a change of custody and that the circuit court erred by disbelieving her version of events.
On appeal, Julia first argues that the circuit court clearly erred in finding that a material change in circumstances occurred after the entry of the divorce decree…. She further discusses the many altercations between her and Michael and claims that the quarrels amounted to petty complaints and parental gamesmanship, which cannot rise to the level of a material change in circumstances, and that they had a similar combative relationship prior to their divorce. In making these arguments, she also asks this court to credit her version of the events over Michael’s account.
Opinion at 10.
The Court of Appeals held that, even discounting the incidents that Julia argued should not have been considered at the trial, there was enough evidence to support the circuit court’s decision:
We hold that the circuit court did not err in finding that a material change in circumstances occurred following the entry of the divorce decree. This court does not examine each finding cited by a circuit court in isolation; certain factors, when examined in the aggregate, may support a finding that a change in custody is justifiable, although each factor, if examined in isolation, would not. Schreckhise, 2019 Ark. App. 48, 568 S.W.3d 782. In this case, even [disregarding the events Julia claims should not have been considered], the record is replete with evidence of an exceedingly hostile environment created by Julia following the divorce…Taken as whole, these circumstances easily rise above petty complaints and parental gamesmanship. Further, Julia’s criminal charges and the false DHS report demonstrate a new level of hostility that did not exist prior to the divorce.
Opinion at 10-11. With respect to Julia’s claim that the circuit court should have believed her, the Court of Appeals recited the well-established principle that appellate courts in family law cases do not second guess trial courts.
Therefore, the court affirmed the change of custody.
Bottom Line:
Coparenting children with an ex, whether a spouse, girlfriend, or boyfriend, can be hard. Parents often have differing ideas about how to raise their children, they sometimes live far apart, and there is often at least some level of residual ill will from the broken relationship. Arkansas Family Law Courts understand that. But there is a limit. A court’s grant of custody is not a license to the custodial parent to act however they want. They must continue to act in, and provide an environment that promotes, the best interests of the child. Moreover, they must respect the noncustodial parents’ rights. Failure to do so can result in a change of custody.
Parents dealing with custody issues issue are well-served to consult with an Arkansas Family Law Attorney as soon as possible. Contact our firm by phone, email, or our contact form if you would like your case evaluated.
