588 S.W.3d 38
Ark. Ct. App.2019Background
- Brittany and Bryan Cunningham married in 2014 and have one child (PC), born July 2015; divorce filed by Brittany in August 2017 on general-indignities grounds.
- At trial the only contested issues were custody, visitation, and child support. Brittany sought sole custody; Bryan sought sole custody.
- Brittany testified she had been PC’s primary caregiver, complained Bryan worked a lot, had poor communication, interfered with her relationship with her ex-husband, and sometimes said hurtful things in front of PC.
- Bryan admitted heavy work commitments, acknowledged communication issues, and asserted he is capable and concerned for PC’s welfare; both parents love PC.
- The circuit court found neither parent fatally flawed, concluded joint custody would maximize PC’s time with both parents and reduce exchanges, awarded equal physical custody (Brittany to have final say on major medical decisions), and ordered no child support.
- Brittany appealed, arguing the joint-custody award was erroneous given the general-indignities finding, her status as primary caregiver, Bryan’s limited exercise of visitation during separation, and the parties’ communication problems.
Issues
| Issue | Plaintiff's Argument (Brittany) | Defendant's Argument (Bryan) | Held |
|---|---|---|---|
| Whether a divorce based on general indignities precludes a joint-custody award | Brittany: Bryan’s conduct in marriage (jealousy/interference) shows they cannot cooperate in joint custody | Bryan: Best interest of PC favors maximizing time with both parents despite marital issues | Court: Rejected Brittany’s link; different legal considerations govern divorce grounds and custody; joint custody affirmed |
| Whether Brittany’s role as primary caregiver and Bryan’s limited past visitation preclude joint custody | Brittany: Her primary-caregiver status and Bryan’s sporadic visitation show joint custody is inappropriate | Bryan: Both parents love PC and are capable; past visitation does not prove inability to parent equally | Court: Primary-caregiver status relevant but not dispositive; evidence supports joint custody |
| Whether lack of communication/hostility makes joint custody improper | Brittany: Poor communication and past conflicts (including fights over exchanges) show inability to cooperate | Bryan: Conflicts are not as severe as in cases reversing joint custody; court can structure custody to limit conflict | Court: Cooperation here was not so lacking as to prohibit joint custody; circuit court’s factual findings stand |
Key Cases Cited
- Grimsley v. Drewyor, 575 S.W.3d 636 (Ark. Ct. App. 2019) (best-interest standard; deference to circuit court’s credibility and custody findings)
- Stibich v. Stibich, 491 S.W.3d 475 (Ark. Ct. App. 2016) (joint custody reversible where parties lack ability/willingness to cooperate)
- Hoover v. Hoover, 498 S.W.3d 297 (Ark. Ct. App. 2016) (affirming joint custody despite animosity where both parents were capable and involved)
- Li v. Ding, 519 S.W.3d 738 (Ark. Ct. App. 2017) (reversing joint custody where parties had significant disagreement and poor communication)
- Hewett v. Hewett, 547 S.W.3d 138 (Ark. Ct. App. 2018) (reversing joint custody when overt hostility and inability to get along made joint custody inappropriate)
- Black v. Black, 456 S.W.3d 773 (Ark. Ct. App. 2015) (primary-caregiver status is relevant but not determinative in custody decisions)