Campbell v. Campbell

John B. Robbins, Chief Judge,

dissenting. I believe the prevailing judges perpetuate a chancellor’s error today by failing to reverse an order that changes custody of two young children, contrary to their best interest, and without proof of a material change in relevant circumstances. I disagree with the prevailing opinion in three essential respects. First, there is an absence of any material change of circumstances apart from those involving appellee, the noncustodial parent; next, I disagree with the weight given to the custodial preference of an eight-year-old child; and finally, I do not believe serious consideration was given to an illicit sexual relationship in which the appellee is involved.

Material Change of Circumstances

The prevailing opinion seems to say that in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996), the supreme court did not adopt the majority view that changes only in the life of the noncustodial parent cannot constitute a sufficient change in circumstances to reopen the custody issue. However, the prevailing opinion then undertakes a de novo review of the record and finds two basic changes in circumstances apart from those in appellee’s life. First was the overwhelming desire of Michael, age eight, to live with appellee, and the second was an incident that resulted in the appellant being charged with disorderly conduct. I believe the prevailing opinion is in error on both bases.

If the prevailing judges are reading Jones as having held that changes solely in the noncustodial parent’s life may constitute a sufficient change to reopen the custody issue, then I submit they are wrong. In Jones, the supreme court cited Professor Atkinson, Modern Child Custody Practice, § 9.07 at 462-463 (1986), and acknowledged that it set forth the majority view that a change of circumstances of the noncustodial parent, including a claim of improved life because of recent marriage, is not sufficient to justify modifying custody. The supreme court then cited Delgado v. Silvarrey, 528 So.2d 1358 (Fla. App. 3 Dist. 1988), where a noncustodial parent’s remarriage and anticipated higher standard of living did not amount to circumstances sufficient to support a change in custody; and Spoor v. Spoor, 641 N.E.2d 1282 (Ind. App. 3 Dist. 1994), which held that changes in lifestyles, including remarriage, by the noncustodial parent do not warrant a change in custody. I believe that significant changes in the life of a noncustodial parent should permit reopening the issue of custody between the competing parents; however, it appears that the supreme court has spoken, and by implication it has adopted the majority view set forth by Professor Atkinson.

The chancellor identified the changed circumstances on which he relied in modifying custody as follows:

In regard to whether circumstances have changed since the last custody decision, there is no question that they have. Mrs. Campbell has a steady job. She appears to be emotionally stable at this time unlike before and she is in an apparent stable relationship with a man . . . , notwithstanding the fact that the Court has misgivings about this out of wedlock relationship.

Because these three changes pertain solely to the noncustodial parent, and inasmuch as the majority view has now become the rule in Arkansas, these changes fail to constitute a significant change in circumstances sufficient to open the door to a review of custodial placement.

As to the prevailing opinion’s reliance upon a de novo review to find a significant change of circumstances apart from those in the noncustodial parent’s fife, I believe the prevailing judges’ conclusions are strained and not well based. Though the prevailing opinion identifies the overwhelming desire of Michael to live with his mother as a significant change of circumstances, there is nothing in the record to indicate that this is a changed circumstance. How do the prevailing judges know that Michael did not have this same desire to live with his mother when custody was previously placed with appellant? Since the record is silent on this, I submit that the prevailing judges have erroneously shifted the burden of proof to the custodial parent by finding this to be a change in circumstances in the absence of proof of what the circumstances were at the time custody was placed with appellant in November 1993.

The other event that the prevailing opinion identifies on de novo review as a significant change in circumstances is the disorderly conduct charge against appellant. However, the prevailing opinion cites no cases where a single, isolated event of misconduct, which caused the children no physical harm nor placed them in risk of physical harm, has been held to constitute a significant change in circumstances for custody purposes. Nor do I know of any such cases.

Best Interest of the Children

(a) Custodial preference of an eight-year-old child

Although there was not proof of sufficient changes in circumstances to permit the issue of custody to be addressed by the chancellor in this case, I submit that even had significant changes been shown, it is contrary to the best interest of these children to be placed in the custody of appellee. The chancellor explained the basis for changing custody in his remarks from the bench, as follows:

[Ajfter hearing the parties and their witnesses and having considered the evidence and after having lengthy conversation with the children in chambers, Court’s findings are that in although in all probability I would not change custody in this case if it were not for Michael’s overwhelming desire to be with his mother, I am convinced that because of Michael’s desire to be with his mother that his best interest can only be served by placing him with her.
While I believe Nicole’s best interest would not be harmed if she were left in the custody of her father, the Court believes it is in both children’s best interest to stay together.
Accordingly, I am awarding custody of both children at this time to their mother, subject to visitation set out in the Court’s standard visitation order in the father.
This is a painful decision for the Court because in many ways, the Court believes the children’s father has done an outstanding job in raising these children against tough odds, being a student with a limited income and limited time.
He has been therefor the children when their mother was not. I am impressed by the teachers, by the testimony of the children’s teachers who in summary said that the children are excellent students, cheerful and that their father has had a very concerned ■— has been a very concerned, involved parent.
However, after lengthy interview with the children I find Michael to be as Dr. Barling did, a tearful, stressed, almost frightened little boy who desperately wants to be with his mother. When I reminded Michael how hard his father had tried to be a good father to both him and his sister he started crying and said, “He’s not going to let us go to Mom.”
In summary, this little boy wants and needs his mother for whatever reason and I am convinced not to grant this desire would be emotionally damaging if not devastating to him.

(Emphasis added.) I submit that the emotions of an eight-year-old child should not constitute the gauge for determining custody. If we countenance tantrums in the judge’s chambers by rewarding this conduct, the trial-tactic message we send out to attorneys in domestic-relations practice is obvious. The expert to whom the chancellor referred was Dr. Barling, and he testified as follows:

I don’t feel like I’m in a position to give a recommendation today to the court as far as who should have custody. There are a lot of factors to be considered. I didn’t evaluate these factors.
In Ms. Gibbon’s report she describes Nikki as perceiving her mother as someone who needs to be cared for and stated that she has to be careful about her mother’s feelings. That Nikki played the role of the mother in the relationship, that she had to be the mother. This is something that should be taken into consideration. It’s the parenting situation, the parenting skills, the stability of the parents, as well as the physical factors of shelter, schools, things like that.
It isn’t always common that children who have a parent who’s had emotional problems and psychological problems to feel they are the caretaker for their parent. It depends on the age of the children, but the need to comfort or want to take care of, those kinds of behaviors, care taking behaviors, are not unusual.
There is a quote in Ms. Gibbons report that Nikki indicated that Mrs. Campbell told the children that she was “homeless and she had no children.” That kind of statement would be in poor judgment. The result would be very negative in my opinion. It would be a matter of rejection, it had a negative impact. Pleasing parents is a very strong motivation for most all children.

The risk of manipulation of an eight-year-old to tell a chancellor what a parent wants the child to say and how to say it is so great that a court should not rely solely on the child’s preference in making a custody determination. Such a burden should never be placed on the shoulders of a small child; and we abdicate our adult responsibility to determine the best interest of a child when we let the child decide this very serious issue.

Furthermore, I find it somewhat inconsistent for the court to decide the custody issue on the stated basis of the preference of this eight-year-old child, but yet deny appellant’s motion for reconsideration by holding that even if the child apologized to appellant after the hearing for lying and spying and remarked to appellee as they were leaving the courtroom that “I guess I get my cellular phone now,” that these statements were insufficient reasons for the court to reconsider its decision.

(b) Illicit cohabitation

Finally, the matter of cohabitation by appellee with her boyfriend, while not disregarded by the trial court, did not influence its decision. It should have. The only reason our judicial system is ever involved in such an intimate family matter as this is because the family has become dysfunctional; one or both of the parents have sought the aid of a court to terminate their marital relationship; and because they cannot agree to custody of their minor children they require the intervention of a court to decide the matter. The exercise of this intervention can impact the rights to privacy and association of consenting adults. So long as a person’s conduct does not violate the law, his lifestyle is and should be a private matter between him and his conscience. But when children enter the picture — minor children who are wards of the court, Clark v. Reiss, 38 Ark. App. 1501, 831 S.W.2d 622 (1992) — society has an interest in seeing that these children are placed in the parent’s custody who will better provide for their physical, educational, cultural, and moral character development.

Our courts have never condoned a parent’s illicit conduct or lifestyle when such conduct has been in the presence of the child. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). It has never been necessary to prove that illicit sexual conduct on the part of the custodial parent is detrimental to the children, for our courts have presumed that it is. Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). In Anderson v. Anderson, 18 Ark. App. 284, 715 S.W.2d 218 (1986), a case that involved a situation very similar to the one at bar, the father of a nine-year-old son sought a change of custody, citing his ex-wife’s cohabitation with a man as evidence that she was an inappropriate custodian. His ex-wife subsequendy married the man with whom she had been living, and the trial court denied the father’s petition for change of custody. On appeal, we made this observation:

[W]e cannot say the chancellor was clearly erroneous in finding . . . that appellee’s subsequent marriage to Rick tempered her reprehensible conduct. In so holding, we note that the chancellor was in a superior position to assess the sincerity of the appel-lee’s atonement for allowing Rick Beightol to move into the home without benefit of marriage, her subsequent marriage to Pick and the effect of this transgression on the welfare of Will.

Id. At 289, 715 S.W.2d at 221. We affirmed a chancellor who characterized the mother’s illicit cohabitation as “reprehensible conduct,” and a “transgression.” However, because the mother married her boyfriend prior to the custody hearing and the chancellor found that this tempered her meretricious relationship, we affirmed the chancellor’s decision to leave the child in the mother’s custody. In the case at bar, however, there was not a subsequent marriage. Though the live-in boyfriend suggested that they had been too busy to obtain a marriage license, they have found time to cohabit for the past two years. His commitment to marriage appears somewhat less certain than appellee’s, as evidenced by the fact that he has not given appellee an engagement ring, and by his statement that “if we’re married Mrs. Campbell will have a legal interest” in the house he plans to build within the next year or so.

The prevailing opinion appears to equate appellant’s relatively brief relationship with a former girlfriend with the appel-lee’s cohabitation. However, appellant’s girlfriend did not reside with him. She spent the night with him on a few occasions but did so without the children’s knowledge. Furthermore, this relationship terminated months before the court’s custody decision was entered. The appellee’s illicit cohabitation continued even to the time of the hearing and, as far as we know, persists to this day.

I do not contend that a parent’s illicit cohabitation should be an automatic and absolute bar to custody. There must be a better alternative custodian before custody is denied on the basis of such cohabitation. Indeed, a cohabitating parent would be preferable as a custodian if the other parent is abusive or otherwise incapable of parenting a child. If the competing parent has satisfactory parenting skills and is able to provide a suitable home and environment for the child, this would constitute the preferable alternative. In the case before us, the appellee is cohabitating with a man out of wedlock. Appellant is not.

Appellant has proven his parenting skills and ability to provide a suitable home for his children. The court specifically noted that “the children’s father has done an outstanding job in raising the children against tough odds,” and that “he has been there for the children when their mother was not.” The chancellor further stated that he was impressed by “the testimony of the children’s teachers who in summary said that the children are excellent students, cheerful and that . . . [appellant] has been a very concerned, involved parent.”

These children should have remained in the custody of their father, and we do them a disservice to affirm a removal of custody to their mother.

For all those reasons stated herein, I respectfully submit that the chancellor erred in changing custody of the parties’ two minor children and would reverse and remand the case to the trial court with directions that custody be returned to appellant, subject to such reasonable visitation as the chancellor may direct.

Because we have reached a tie vote in this case, the chancellor’s decision must be affirmed. Ark. Code Ann. § 16-12-113 (Repl. 1994). It would be instructive for appellant to seek a review of this decision in our supreme court. Ark. Sup. Ct. R. 1-2(e) (i).

Meads and Roaf, JJ., join in this dissent.