The opinion
Sarah J. Heffley, Judge, dissenting. Our standard of review requires us to defer to the trial court on matters of credibility and to affirm when the trial court’s decision is not clearly against the preponderance of the evidence. We thus place a great deal of trust, and rightly so, in our trial courts to protect the best interest of children in making custody decisions. While the primary responsibility lay in the trial court, it is no less our duty to ensure that the trust reposed in the trial court is carried out faithfully and impartially and that its decision is well-grounded in fact. Remaining true to our standard of review is not to blindly approve any and all custody decisions with the rap of a rubber stamp, especially when admitted facts emerge from a record that clearly show a change in circumstances affecting the best interest of the child. This is such a case, as the record reveals a pattern of reprehensible conduct on the part of the custodial parent designed, not just to drive a wedge between, but to eliminate the non-custodial parent from the child’s life. I dissent because this court should not place its stamp of approval on the trial court’s decision allowing the child to remain with the custodial parent.
In the previous appeal, we affirmed the trial court’s decision changing custody of the child to appellee because appellant was found to have engaged in behavior deemed to alienate appellee from the child. This behavior included sending “tacky” emails, withholding medical information, the denial of visitation after the child had a biopsy, lying about taking the child to the emergency room because of a dosage of Tylenol appellee had given, failing to follow a court order to let appellee babysit the child, not having the child ready for visitation, delaying visitation when the child was asleep, and informing appellee about the child’s surgery late and by email. The trial court considered appellant’s actions “horrific,” “evil,” and detrimental to the child. While we affirmed the change of custody, we reversed the requirement of supervised visitation because there was no evidence of mental instability to warrant supervision.
Let us now examine the record in the current case to see how appellee has acquitted himself as the custodial parent. At the moment custody was changed, appellee did not allow the child to keep any of his toys, not even his favorite one. He has refused to allow the child to bring home birthday and Christmas gifts given to the child by appellant and her family. He has also refused to allow the child to wear clothing given the child by appellant, and he has apparently imparted his no-gift policy to his mother, who supervised visitation for a while. She once removed a Razorback outfit the child had been given at visitation and, in her words, she “threw it on the car and left.”
Just several months after custody was changed, appellee and his family falsely accused appellant of sexually abusing the child during a diaper change in full view of everyone in the room. Appellee’s mother reported that appellant held the head of the child’s penis, picked all around it, and wiped it off. She felt this was “unnatural.” This incident was videotaped, and a review of the tape reveals that absolutely nothing untoward happened at all. Yet, appellee has persisted in his claim of sexual abuse, despite clear evidence to the contrary.
After this visit, appellee issued an ultimatum through his attorney that he would cease visitation unless appellant agreed in writing to not change the child’s diaper. Appellee has made other demands in regards to visitation. The child has eczema, and appellee has seen to it that appellant may not use that word during visitation. Appellant’s sister moved to Great Britain, and she showed the child where it was located on a globe during one visitation session and said they might visit there. The child came home and told appellee this, and appellee told the child “no,” causing the child to “freak out,” according to appellee. After that, appellant was forbidden to mention England during visitation. Appellant was also forbidden to correct the child when he referred to her by her first name instead of “mommy.” Appellant was also forbidden to correct the child when he referred to appellee’s wife as “mommy.” Those supervising visitation were to closely monitor appellant’s communications with the child to make sure that she did not speak of these vile subjects. And, speaking of supervisors, appellee saw to it that one of them was fired after she chastised him for coming to the door instead of waiting at the car and also chastised him for berating appellant for “messing up” the child’s hair.
Within days of the “diaper” incident, the child was scheduled for an important doctor’s visit. Though it was a violation of a court order, appellee decided not to let appellant attend the visit. Appellant came anyway, and appellee had her escorted out of the hospital by security, while the child was screaming for his mother. As a result, appellant was required to sit in her car all day until appellee finally let her come back inside for the test results. At another doctor’s appointment, the child was crying for his mother as appellee carried him back to the room. Although the child wanted his mother, appellee would not let her come into the room initially, and he only relented because the child would not stop crying. On another occasion, appellant wanted to carry the child to the car after the doctor visit, as she had allowed appellee to do when she had custody. Appellee told her to stop, and when she did not obey him, he forcibly removed the child from her arms.
Appellee has also denied visitation when it suited him. Appellee has canceled the child’s doctor appointments so that appellant could not attend. He and his wife once went to the restaurant where appellant worked and, unsolicited, he spoke badly about her to a coworker, saying that she had lost custody and was under supervised visitation. Appellant drove by appellee’s home on one occasion, and appellee got in his car and chased her. Appellee has adamantly refused to participate in family counseling and maintains that there is nothing wrong with him and that it would not benefit the child.
There is an ill wind blowing from different directions in this case. The record reveals a certain coziness between appellee and the child’s attorney ad litem that is disturbing. The record is punctuated with objections made by the trial judge during appellant’s counsel’s examination of witnesses, with the court sustaining those objections when counsel had the temerity to express her point of view. In addition, the trial court, sua sponte, held appellant in contempt, a decision that even the majority finds fault with. The record also shows that appellant had been entrusted with the custody of her sisters, one of whom had a baby. From those who observed appellant during that time, she was said to have handled the situation “beautifully.” At the time of the hearing, appellant still had custody of the one sister with a baby. Yet, appellant is still considered unfit to either have custody or unsupervised visitation of her own child?
The trial court did make extensive findings outlining its decision. In those findings, the trial court declared there was no evidence that the child was being harmed by appellee’s conduct. However, in the previous appeal we recognized that one parent’s efforts to alienate the child from the other has a detrimental effect on the child. In the previous case, there was no direct evidence of harm presented. The conduct was considered harmful in and of itself because it is desirable and in a child’s best interest to maintain a good relationship with the non-custodial parent. Here, appellee’s misdeeds were admitted by him, which allows us to objectively view the evidence to determine whether there was a material change in circumstances affecting the best interest of the child. Keeping in mind that this litigation was begun by appellee filing a motion to further restrict appellant’s already limited visitation, the record reveals a concerted effort on the part of appellee to alienate the child from appellant. And, when one compares his present behavior to her past conduct, one sees that his behavior is far more damaging to the child. Whereas appellant’s conduct was directed at appellee personally, appellee’s more egregious conduct took place in the presence of the child. At the end of the day, it is not the length and detail of a trial court’s findings that matters when the record reveals them to be nothing more than empty words. Being faithful to our standard of review, I am convinced that the trial court’s decision is clearly against the preponderance of the evidence. Therefore, I dissent. I am authorized to state that Judge Hart joins in this dissent.