602 S.W.3d 759
Ark. Ct. App.2020Background
- Parties met in medical school in Poland; relationship produced two daughters (2010, 2013) and ended in 2015. Cyrus later sued to establish paternity and seek joint custody; a May 15, 2017 agreed paternity decree awarded joint legal custody with Szwedo as primary physical custodian and visitation to Cyrus.
- In 2018, Szwedo moved to set aside the paternity decree alleging Cyrus misrepresented an ongoing relationship with Mary Rooks; Cyrus filed to modify custody alleging parental-alienation behaviors, interference with visitation, refusal to use his surname for the children, and declining school performance.
- Trial occurred in October 2018; the attorney ad litem recommended joint custody despite high conflict. Cyrus moved in limine to exclude Szwedo’s testimony about abuse; the court granted the motion but allowed a proffer. The ad litem’s written report was offered at trial.
- The circuit court found escalated and increasing parental-alienation conduct by Szwedo after the 2017 order, concluded a material change in circumstances, and awarded joint legal and physical custody on alternating weeks; it allocated final medical and educational decision authority and increased child support.
- The court excluded live-abuse testimony as untimely but considered Szwedo’s proffer and other testimony about alleged past abuse; it admitted the ad litem’s written report. Szwedo appealed on evidentiary rulings and the custody modification.
Issues
| Issue | Plaintiff's Argument (Szwedo) | Defendant's Argument (Cyrus) | Held |
|---|---|---|---|
| Exclusion of domestic-abuse evidence | Abuse evidence should have been admitted; statute requires consideration of domestic violence | Evidence predated May 2017 decree and was untimely; motion in limine proper | No reversible error: court excluded live testimony but allowed full proffer and considered abuse; no prejudice shown |
| Admissibility of attorney ad litem’s written report | Report exceeded AO No. 15 scope, contained hearsay, violated confrontation/due process | Report admissible under precedent (Tracy) and AO No. 15; ad litem’s report is proper evidence | Admitted: court followed Tracy; appellant’s objections do not require overruling precedent |
| Material change in circumstances to modify custody | No material change; alienating behaviors predated the 2017 order so modification improper | Alienation increased in frequency and impact after 2017, constituting a material change warranting modification | Affirmed: court found escalation and negative impact on children — not clearly erroneous |
| Appropriateness of joint custody / Cyrus’s Texas work schedule | Joint custody improper when parties cannot cooperate; Cyrus’s work in Texas makes joint custody unworkable | Statute favors joint custody; lack of cooperation caused by Szwedo’s unilateral alienation; Cyrus can schedule time in Arkansas | Affirmed: joint custody permissible under current law (Pace); court credited testimony that Cyrus could arrange time in-state; award not clearly erroneous |
Key Cases Cited
- Tracy v. Dennie, 411 S.W.3d 702 (Ark. 2012) (attorney ad litem’s report is admissible and does not inherently violate Rule 3.7)
- Pace v. Pace, 595 S.W.3d 347 (Ark. 2020) (Legislature amended custody law to favor joint custody)
- Hanna v. Hanna, 377 S.W.3d 275 (Ark. App. 2010) (court may consider incidents predating prior order when not previously presented or known)
- Sharp v. Keeler, 256 S.W.3d 528 (Ark. App. 2007) (parental alienation can justify change of custody)
- Hamilton v. Barrett, 989 S.W.2d 520 (Ark. 1999) (standard of review and deference to circuit court in custody matters)
- Alphin v. Alphin, 219 S.W.3d 160 (Ark. 2005) (best interest of the child is the primary consideration in custody disputes)