Hortelano v. Hortelano
2017 Ark. App. 98
Ark. Ct. App.2017Background
- Hector filed for divorce in July 2010 seeking joint custody with himself as primary custodial parent; Laura counterclaimed and sought joint custody with herself as primary.
- Temporary orders (Sept. 2010 and Mar. 2011) provided joint custody arrangements (initially Hector primary, later neither designated primary) and restricted overnight opposite-sex visitors unless related or married.
- Evidence at the final hearing: Hector claimed he was primary caregiver since Laura left in 2010 and cited financial support and daily transport of children; Laura testified she had been primary caregiver before being excluded from the home, admitted an affair, and described a history of a relationship with Hector beginning when she was a minor and travel/marriage in Mexico.
- Testimony included allegations Hector kidnapped Laura to Mexico when she was a minor and that Laura had lived with her current boyfriend and had additional children; daughter testified she sleeps with Hector and brother nightly and did not express a custody preference.
- Attorney ad litem recommended joint custody with Hector primary; the trial court expressed serious concerns about Hector’s past conduct (relationship with underage Laura and alleged kidnapping), later announced it would grant joint custody with Laura as primary, and entered a decree awarding Laura primary physical custody and specific visitation to Hector.
Issues
| Issue | Plaintiff's Argument (Hector) | Defendant's Argument (Laura) | Held |
|---|---|---|---|
| Whether award of joint custody with Laura as primary was in children’s best interest | Award should be joint with Hector as primary because he has been primary caregiver since 2010 | Joint custody with Laura primary is supported by best-interest factors and prior caregiving role | Court affirmed joint custody with Laura primary as not clearly erroneous |
| Relevance of Laura’s lifestyle/cohabitation and alleged promiscuity | Laura’s unstable lifestyle, cohabitation with boyfriend, and violation of temporary orders make her unfit / contrary to children’s best interest | Lifestyle concerns do not outweigh best-interest factors; prior caregiving and other evidence support award | Court considered lifestyle but concluded it did not require a contrary result; best interest controls |
| Whether prior temporary orders created a custody determination requiring changed-circumstances showing | Hector treated decree as modification requiring changed-circumstances proof | The prior orders were temporary; this is an initial custody determination | Court treated this as initial custody determination; changed-circumstances standard inapplicable |
| Credibility concerns re language barrier and testimony inconsistencies | Court improperly discredited Hector due to his language barrier | Court weighed credibility; no indication decision rested solely on language issues | No reversible error; court’s credibility assessments entitled to deference |
Key Cases Cited
- Moix v. Moix, 430 S.W.3d 680 (Ark. 2013) (best-interest standard controls over public-policy objections to parental cohabitation)
- Fox v. Fox, 465 S.W.3d 18 (Ark. App. 2015) (joint custody favored by statute and child’s best interest is primary)
- Rector v. Rector, 947 S.W.2d 389 (Ark. App. 1997) (factors for best-interest custody determinations include psychological relationship, stability, past conduct, and child preference)
- Carver v. May, 101 S.W.3d 256 (Ark. App. 2003) (violation of court orders is a factor but not necessarily determinative in custody decisions)
- Vo v. Vo, 79 S.W.3d 288 (Ark. App. 2002) (note on assessing credibility where testimony inconsistencies may relate to language barriers)