Earl v. Earl, 2015 Ark. App. 663

Kristel and Jason Earl divorced in May 2012; Kristel received primary custody of daughters M.E. (14) and J.E. (11); Jason had visitation and paid child support.
March 15, 2014: an incident at Kristel’s home in which Kristel slapped both daughters, yelled, and threw M.E.’s clothes into the hallway; Kristel was arrested and the children were placed temporarily with Jason.
Jason petitioned (May 2014) to modify custody, alleging a material change in circumstances (mother’s poor decisionmaking and recent arrest/assault on the children); he was awarded temporary custody; Kristel was initially given supervised visitation and later sought unsupervised visits.
At the October 31, 2014 hearing both daughters testified and said they were happier living with their father and wished to remain with him; both described the March incident and found their mother credible but acknowledged no lasting physical injuries.
The circuit court found both girls credible, concluded Kristel committed abuse by slapping them, found a material change in circumstances (mother’s poor parenting and the slap), and awarded permanent custody to Jason while allowing Kristel unsupervised visitation.
Kristel appealed, arguing the slap was a single, noninjurious, disciplinary act that did not meet the juvenile-code definition of abuse and that the custody change was not in the children’s best interest.

Issue	Plaintiff's Argument (Kristel)	Defendant's Argument (Jason)	Held
Whether Kristel’s slapping constituted "abuse" under Ark. Code § 9-27-303	Single, noninjurious disciplinary slaps do not constitute abuse; no bruising/scarring and act was to correct behavior	The slaps were intentional and struck the children’s faces, fitting the statutory definition of abuse	Court erred in labeling the conduct "abuse" under the juvenile code
Whether a material change of circumstances occurred to justify custody modification	No material change: incident isolated; Kristel had taken parenting classes, counseling, and had positive testimony about her parenting	Increased, volatile fighting culminating in the slapping, plus children’s expressed preference and improved welfare with father	Court did not clearly err: there was a material change (mother’s poor parenting and the incident)
Whether change of custody was in the children’s best interest	Placement with father is risky given past drinking and earlier letters showing children’s concerns about Jason	Children were happier with father, stable household, same school, stepmother relationship; father supports mother–child relationship	Change of custody affirmed: custody with father was in children’s best interest

Johnson v. Arkansas Department of Human Services, 413 S.W.3d 549 (Ark. Ct. App. 2012) (single, noninjurious “popping” to a child’s head did not support dependency-neglect finding)