Alphin v. Alphin

Betty C. Dickey, Justice, dissenting. I must respectfully dissent. The trial court adopted a blatant double standard when it issued the change of custody order awarding custody of Megan to Paul. It focused only on Nina’s cohabitation, while making no mention of Paul’s peccadilloes. The trial court, and now this court, not only ignored the double standard, but ignored the fact that any instability in Megan’s life was not a changed circumstance justifying the change of custody.

There were no circumstances presented to the trial court that are materially different from when the first custody order was entered. Justice requires that we compare the circumstances presented to the court when the first order of custody was entered and the circumstances presented to the court upon a request to change custody.

A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.

Jones v. Jones, 326 Ark. 481 , 931 S.W.2d 767 (1996) (quoting Stamps v. Rawlins, 297 Ark. 370 , 761 S.W.2d 933 (1988)) (emphasis added). Courts will generally impose more stringent standards for modifications in custody than for initial determinations of custody. Id. See also Taylor v. Taylor, 353 Ark. 69 , 110 S.W.3d 731 (2003).

The trial judge who entered the change of custody order here was clearly offended by Nina’s extramarital cohabitation. However, the cohabitation issue did not constitute a changed circumstance here, since the court originally gave Nina custody of Megan at a time when she was living with a man to whom she was not married. In addition, the judge could not possibly have viewed Paul as a better candidate to be awarded custody based upon such a moral issue. The record indicates that he allowed Nina to live with him for some time after the two were divorced, without the benefit of marriage. The record also indicates that Paul married his current wife only after she was three months pregnant. Finally, Paul’s new wife testified that he was motivated to seek custody of Megan because he was ordered by the court to pay child support. While not evident that Paul’s motives to gain custody were merely financial, it is troubling to award him custody when he has neither paid child support nor medical expenses, and has shown little interest in Megan until after her mother sought court-ordered child support.

The majority justified the change in custody by focusing on the unstable environment provided by Nina; however, it failed to recognize that Megan’s unstable environment was a direct result of Paul’s lack of participation and the court’s failure to require it. The court failed to provide for child support in its initial order, failed to caution parents about inappropriate behavior around their child, and failed to inquire about each parent’s living situation. Paul did not financially participate in Megan’s care, forcing Nina to depend on the charity of her family and friends for financial help and living expenses.

There simply were no changed circumstances present in the instant case to justify the change of custody order. For the foregoing reasons, I respectfully dissent.