dissenting. The trial court changed custody of the parties’ minor daughter from the mother to the father stating that cohabitating constitutes a change of circumstances in this State and that the mother’s relationship with the man she ultimately married was a sufficient change of circumstances. While extramarital cohabitation in the presence of a child may constitute a material change in circumstances warranting a change in custody, neither cohabitation nor remarriage requires a court to find a material change of circumstances.1
Determining whether there has been a change of circumstances that materially affects the children’s best interest requires a full consideration of the circumstances that existed when the last custody order was entered in comparison to the circumstances at the time the change of custody is considered. A party seeking to modify custody must prove that a material change of circumstances has occurred since the last order of custody or that material facts existed at the time of the decree that were unknown to the court.2 Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child.3 The trial court’s findings in this regard will not be reversed unless they are clearly erroneous.4 While custody is always modifiable, appellate courts require a more rigid standard for custody modification than for initial custody determinations in order to promote stability and continuity for the children and to discourage repeated litigation of the same issues.5 There are no cases in which the superior position, ability, and opportunity of the trial judge to observe the parties carries a greater weight than those involving the custody of minor children, and our deference to the trial judge in matters of credibility is correspondingly greater in such cases.6
Given that the court originally placed custody of this child with the mother who was at that time cohabitating with a man to whom she was not married, the sole fact that she cohabitated with her husband prior to their marriage cannot constitute a material change of circumstances justifying a modification of custody. Furthermore, the facts do not supporting a finding that a material change of circumstances has occurred since the original custody order was entered. Therefore, this case should be reversed.
In Jones v. Jones, 326 Ark.481, 931 S.W. 2d 767 (1996), the noncustodial parent remarried and filed for a change of custody of the parties’ children, citing, in part, his subsequent remarriage. Id. The Jones court held that remarriage alone was not a sufficient reason to change custody. The court also stated that because the father was aware of the alleged change in circumstances at the time of the custody agreement, he could not use those changes as grounds to modify custody. Id. In Hamilton v. Barrett, supra, the supreme court noted its holding in Jones, merely underscored the rule that changes in circumstances of the non-custodial parent, including a claim of improved life because of remarriage, are not alone sufficient to modify an order of custody. Moreover, this court has refused to modify custody merely because one parent has more resources or income.7
In this case, the trial judge did not rely on the father’s remarriage as a change in circumstances, and properly so. Thus, the only fact left for the trial judge to rely upon as a change of circumstance was that the mother cohabitated with her husband prior to marrying him.8 This same mother was cohabitating with a man not her husband when the court initially awarded her custody. She later cohabitated with the appellee for a period of time following the divorce. Apparently, appellee did not object to cohabitation without benefit of marriage at that time. In addition, since at the time of appellee’s remarriage to his present wife she was several months pregnant with his child, it seems that appellee does not object to a sexual relationship predating the marriage. The appellee does not deny that he sought custody of his daughter only after he was required to pay court ordered child support. In fact, his new wife testified that being forced to pay support was what prompted appellee to seek custody of his daughter.
The majority affirms the trial court’s changing custody in this case solely because the mother cohabitated with her husband prior to marrying him.9 The holding of this case demonstrates how this State, through its courts, continues to sanction sexual discrimination against women by applying a double standard with the force of law. In this case, the father cohabitated with appellant following their divorce. He also cohabitated with his present wife prior to their marriage. The only difference between the behaviors of the parties, concerning cohabitation without benefit of marriage, is that when the original custody determination was made the mother was cohabitating with a man to whom she was not married but the father was not. Thus the evidence of a change of circumstance concerning cohabitation, after the original custody order was entered, demonstrates that both parties engaged in it, first with each other and then with the person they ultimately married.
The majority chooses to ignore the fact that there could be no change of circumstance on these facts because when the court originally awarded custody to the mother she was cohabitating with a man to whom she was not married. They then justify the application of a double standard to the conduct of the parties by saying that the reason the mother’s conduct supports a change of custody is that the mother was the custodial parent when she cohabitated with her future husband; thus her conduct occurred in the presence of the child. Of course, no one alleges and the mother flatly denies that she and the step-father engaged in sexual acts when the child was physically present.
Nonetheless, the purported reason for the distinction between the mother’s conduct and the conduct of appellee is that the child, who in this case was less than school age, will somehow “know” that illicit sexual conduct occurred between her mother and step-father before their marriage, thus causing the child’s morals to erode. Even if this were a valid distinction, there is just as great a danger that such an observant and intuitive child might also notice that the arrival of her step-sibling followed rather quickly upon her father’s remarriage. Furthermore, I have been unable to find a single case where a noncustodial mother, after cohabitating with various men following a divorce, used the custodial father’s identical conduct as a changed circumstance to justify relitigation of custody.
Societal mores change.10 When our courts first used language regarding morality and cohabitation without the benefit of marriage in relation to custody, engaging in sexual acts outside of marriage was a criminal act.11 In consideration of this fact, we should not blindly follow such cases. This is especially true where the conduct complained of was occurring at the time the previous custody order was entered, both parties have engaged in the same or similar conduct, and where the court’s previous orders did not proscribe the conduct. Our law should not be an unspoken code that bases custody decisions upon the courts monitoring a woman’s sexual activity, a premise which directly contradicts our holdings in alimony cases.12
Accordingly, I dissent.
See, e.g., Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999); Word v. Remick, 75 Ark.App. 390, 58 S.W.3d 422 (2001). See also v. Jones v. Jones, 326 Ark. 481, 491, 931 S.W.2d 767, 772 (1996) (remarriage of noncustodial parent not alone sufficient to find change of circumstances).
Carver v. May, 81 Ark.App. 292, 101 S.W.3d 256 (2003).
Vo v. Vo, 78 Ark.App. 134, 79 S.W.3d 388 (2002).
Id.
5 Id.
Id.
Malone v. Malone, 4 Ark.App. 366, 631 S.W.2d 318 (1982).
Nothing in the record justifies the finding by the court that appellant’s marriage was a ruse. Although appellant freely admitted that the marriage date was moved up because of the pending custody hearing, there is nothing to indicate the marriage was a sham or an attempt to deceive the court.
In reaching the conclusion that cohabitation by the custodial parent standing alone can be a change of circumstances justifying a modification of custody, the majortiy relies on cases where the original divorce decree and custody order specifically prohibited cohabitation in the presence of the children. No such directive was contained in the divorce decree in this case.
See Jegley v. Picado, 349 Ark. 600, 80 S.W 3d 332 (2002): “Societal mores change. Thirty years ago I daresay most religious denominations would have supported the existence of the sodomy statute or something akin to it. Today, five religious denominations have filed an amicus brief in this case challenging the statute’s constitutionality. The unmistakable trend, both nationally and in Arkansas, is to curb government intrusions at the threshold of one’s door and most definitely at the threshold of one’s bedroom.” 349 Ark. at 641,80 S.W3d at 356 (Brown,J., concurring).
See Ark. Stat._(repealed_). See also McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943) (discussing the definition of cohabitation and the criminal nature of cohabitation as proscribed by law). See also Turney v. State, 60 Ark. 259, 29 S.W 893 (1895) (explaining that one night of intimate relations while traveling does not violate criminal statute against cohabitation).
See Gibson v. Gibson, 87 Ark.App. 62, 185 S.W.3d 122 (2004), and cases cited therein.