575 S.W.3d 156
Ark. Ct. App.2019Background
- Married in 1997; separated May 2015; three sons (one, JW, has cerebral palsy and significant medical/therapy needs).
- Temporary joint-custody order in 2015 provided equal time; disputes arose including an emergency petition by Shannon alleging inadequate supervision by Doby that allegedly caused injuries to JW (petition denied after hearing).
- Shannon moved to Harrison (Aug. 2016) and had an ongoing long-term relationship with a man in Dayton, Ohio; she is a registered nurse and receives SSI for JW; Doby is a pastor and school bus driver in Berryville.
- Trial court held a multi-day final hearing with testimony from parents, school staff, therapists, family members, and an attorney ad litem (who recommended Shannon have primary custody); court considered parents’ cooperation history and school/therapy continuity.
- Trial court awarded joint custody, ordered the children to remain in Berryville schools, continued the equal-time schedule used during the temporary order, and denied Shannon’s requests to be designated custodial parent; Shannon appealed.
Issues
| Issue | Williams' Argument | Williams' (Defendant in cross) Argument | Held |
|---|---|---|---|
| Whether the court could consider potential relocation to Ohio when awarding custody | Court improperly considered speculative possibility that Williams would move children to Ohio; no evidence she planned to move | Doby argued extensive evidence of long-term relationship with a Dayton resident made possibility reasonable to consider | Court: Not clearly erroneous to consider possibility given testimony about long-term relationship and credibility determinations resting with trial court; consideration permissible |
| Whether Williams’ move to Harrison could be considered in custody analysis | Move was reasonable and not an impediment; should not be held against her | Doby argued move was meaningful evidence (further from her family) and most evidence occurred after move | Court: Proper to consider the move as a meaningful factor in context of overall evidence; not reversible error |
| Whether joint custody was contrary to preponderance of evidence given ad litem recommendation and claimed lack of cooperation | Joint custody inappropriate because ad litem recommended primary custody for Williams and parties allegedly fail to cooperate; children expressed preferences | Doby argued parties historically cooperated, worked out equal-time schedule, and school/IEP cooperation supported joint custody | Court: Trial court’s credibility findings and factual weighing supported joint custody; not clearly erroneous—trial court may deviate from ad litem and joint custody favored when in children’s best interests |
| Whether children’s preferences/ad litem report required a different outcome | Children preferred Williams; ad litem recommended her primary custody | Doby noted preferences were nonbinding, inconsistent, or not dispositive; trial court heard additional evidence after ad litem report | Held: Child preference/ad litem recommendation are factors but not controlling; court properly weighed them and was not bound to follow ad litem |
Key Cases Cited
- Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (Ark. 2003) (presumption favoring relocation for custodial parent with primary custody)
- Singletary v. Singletary, 2013 Ark. 506, 431 S.W.3d 234 (Ark. 2013) (Hollandsworth presumption not applicable where parents share joint custody)
- Cooper v. Kalkwarf, 2017 Ark. 331, 532 S.W.3d 58 (Ark. 2017) (presumption favoring relocation inapplicable when parents share nearly equal time)
- Hortelano v. Hortelano, 513 S.W.3d 890 (Ark. Ct. App. 2017) (standard of review in custody cases: de novo review but great deference to trial court credibility findings)