597 S.W.3d 124
Ark. Ct. App.2020Background
- AMC (born 2008) lived primarily with her mother, Sarah; parents shared joint legal custody with Sarah having final decision-making; Aaron had standard visitation per a 2009 order.
- Aaron moved to Cabot in 2016, remarried, and sought expanded custody in July 2017 (later amended) alleging material changes and that Sarah’s conduct caused AMC anxiety and obstructed visitation.
- Allegations included Sarah blocking communication, withholding visitation, leaving AMC with nonparent caregivers while working, filing a frivolous medical-board complaint against Aaron’s wife, and resisting therapeutic recommendations.
- An attorney ad litem was appointed and reported that AMC exhibited anxiety, wanted more time with her father, and recommended additional predictable time with Aaron and continued therapy.
- The circuit court found aggregate material changes (including AMC’s anxiety and Aaron’s proximity and added siblings), held Sarah in contempt for the medical-board complaint, ordered joint physical custody with co-parenting counseling and use of Our Family Wizard, and extended Aaron’s weekday/weekend time; Sarah appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there were material changes in circumstances to justify modifying custody | Aaron: AMC’s anxiety, Aaron’s move closer, addition of siblings, and Sarah’s withholding/communication problems are material changes warranting review | Sarah: Communication problems preexisted and are petty; a noncustodial parent cannot create changes to trigger modification | Court: There were aggregate material changes—AMC’s anxiety and need for more predictable father time supported modification |
| Whether joint physical custody (expanding Aaron’s time) is in AMC’s best interest | Aaron: More predictable, increased time with father and his family is in AMC’s best interest; ad litem and child supported more time | Sarah: Changing custody is not in child’s best interest; she already agreed to limited extensions and opposed broader schedule changes | Court: Joint physical custody affirmed; ad litem’s recommendations, AMC’s preference, and deference to trial court supported the award |
Key Cases Cited
- Case v. Van Pelt, 587 S.W.3d 567 (Ark. Ct. App.) (modification of custody requires showing of material change; appellate review is de novo but factual findings reviewed for clear error)
- Williams v. Williams, 575 S.W.3d 156 (Ark. Ct. App.) (child’s preference is a factor to consider in custody determinations)
- Cunningham v. Cunningham, 588 S.W.3d 38 (Ark. Ct. App.) (custody determinations rest on their own facts; joint custody may be appropriate despite parental disagreement)
- Grimsley v. Drewyor, 575 S.W.3d 636 (Ark. Ct. App.) (affirming joint-custody awards where parental disagreement existed)