2016 Ark. App. 174
Ark. Ct. App.2016Background
- Shane Wills is the biological father and custodial parent of a minor son; Theresa Wills (his ex-wife) acted as the child’s mother figure and was found to stand in loco parentis in 2011.
- The 2011 order allowed Theresa to intervene, granted Theresa visitation, and an agreed order awarded Theresa one-half of child-support payments Cherokee Shea paid to Shane.
- Shane and Theresa divorced in 2012 amid acrimony. Shane later stopped paying Theresa her agreed share of support.
- On March 25, 2014, Shane moved to terminate Theresa’s visitation; the circuit court found no changed circumstances to alter custody but found changed circumstances sufficient to modify visitation.
- The circuit court ordered equal week-on/week-off visitation, held Shane in contempt for unpaid support, and ordered him to pay $5,040.82 in arrears within sixty days. Shane appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Theresa’s visitation (as in loco parentis stepparent) should be terminated | Wills argued his parental right to direct upbringing should allow termination of Theresa’s visitation | Theresa argued she stood in loco parentis and visitation is in child’s best interest | Appeal failed for lack of preserved ruling on constitutional claim; circuit court’s visitation order affirmed |
| Whether changed circumstances warranted terminating or modifying visitation | Wills claimed divorce and acrimony were changed circumstances warranting termination | Theresa and court found circumstances warranted modification, not termination | Court found no changed circumstances for custody change but found sufficient change to modify visitation to equal sharing; appellate court affirmed |
| Whether the circuit court violated Wills’s Fourteenth Amendment due‑process rights | Wills relied on Troxel and Foust to say biological parent’s decision should prevail over nonparent visitation | Court relied on precedent allowing visitation for stepparent in loco parentis where child’s best interest supports it | Appellate court refused to reach merits because Wills did not obtain a circuit‑court ruling on the constitutional issue, so it was unpreserved |
| Whether appellant preserved challenges and provided adequate briefing on changed‑circumstances | Wills asserted factual complaints but provided only conclusory changed‑circumstances argument and cited no persuasive authority | Appellee and court treated the changed‑circumstances finding as adequately supported; appellant’s briefing inadequate | Appellate court declined to consider inadequately briefed arguments and affirmed the lower court’s findings |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (plurality opinion) (parents have fundamental liberty interest in directing care of their children)
- Bethany v. Jones, 378 S.W.3d 731 (Ark. 2011) (court may award visitation to a stepparent standing in loco parentis when in child’s best interest)
- Robinson v. Ford‑Robinson, 208 S.W.3d 140 (Ark. 2005) (discusses stepparent visitation and in loco parentis status)
- Standridge v. Standridge, 803 S.W.2d 496 (Ark. 1991) (definition and treatment of in loco parentis)
- Brown v. Brown, 387 S.W.3d 159 (Ark. 2012) (appellate review standard in domestic‑relations cases)
- Baber v. Baber, 378 S.W.3d 699 (Ark. 2011) (burden on party seeking visitation modification to show material change in circumstances)