597 S.W.3d 93
Ark. Ct. App.2020Background
- Keith and Robin Emis divorced after birth of twin sons; custody and visitation have been litigated repeatedly since 2014.
- A September 2014 agreed order gave the parties joint physical custody and legal custody to Robin; in August 2015 the trial court awarded primary custody to Keith after finding a material change, which this court previously affirmed.
- The parties continued acrimonious, years-long litigation involving multiple emergency motions, mutual accusations (parental alienation, safety and supervision concerns), and extensive hearings.
- During subsequent proceedings the circuit court found a material change in circumstances (children’s depression/academic decline, increased parental conflict, changes in Robin’s stability and financial situation, disturbing child testimony, and the children’s preference) and reimposed joint "shared" custody.
- Keith appealed, arguing (1) no material change had been shown, (2) joint custody was not in the children’s best interest given the parties’ inability to cooperate, and (3) primary custody should be returned to him.
- The Court of Appeals held the evidence supported a material-change finding but reversed the joint-custody award because the parties’ entrenched hostility and lack of ability to cooperate made joint custody inappropriate; the case was remanded for a best-interest custody determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material change in circumstances occurred since the last custody order | Emis: court erred; no sufficient change | Robin: multiple changes (children’s depression, parental conflict, Robin’s improved stability, child testimony, children’s preference) | Court: material change supported when factors are considered in aggregate |
| Whether joint (shared) custody is appropriate/best for the children | Emis: joint custody improper because parties cannot cooperate | Robin: joint custody appropriate given changed circumstances and children’s wishes | Court: joint custody reversible error here—parents cannot cooperate; award reversed and remanded |
| Whether the children’s stated preference can constitute a material change | Emis: child preference is not a material change | Robin: preference supports modification | Court: child preference is a best-interest factor, not a basis for material-change finding alone |
| Whether improvements in noncustodial parent’s circumstances alone justify a custody change | Emis: improvements insufficient alone to warrant change | Robin: Robin’s improved stability supports modification | Court: improvements alone are insufficient, but they may contribute when combined with other factors |
Key Cases Cited
- Durham v. Durham, 120 S.W.3d 129 (de novo review standard in custody appeals)
- Watts v. Watts, 707 S.W.2d 777 (burden on movant to show material change before modifying custody)
- Emis v. Emis, 524 S.W.3d 444 (prior appellate decision affirming 2015 custody modification)
- Stibich v. Stibich, 491 S.W.3d 475 (joint custody inappropriate where parents cannot cooperate)
- Fudge v. Dorman, 516 S.W.3d 306 (noncustodial parent’s improved circumstances alone do not justify change)
- Judkins v. Duvall, 248 S.W.3d 492 (trial court’s superior opportunity to observe children carries significant weight)