dissenting. Upon review of the record in this case, I believe that the trial court’s decision changing custody of this eighteen-month-old child from his mother to his father was clearly erroneous. I dissent due to my conviction that the majority misinterprets and misapplies our precedent regarding alienation of a child in custody disputes and because changing custody was not in the best interest of the child.
The majority’s misapplication of precedent concerning alienation of a child is apparent in the majority’s statement that the trial judge’s decision was correct because “the record is replete with Sharp’s attempts to alienate Keeler from his son.” There are two problems with the this position. First, alienation has never been understood to mean alienation of a parent; rather, it has been understood to mean alienation of the child from the parent. See generally Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997) (Arkansas courts do consider whether one parent is alienating a child from the other parent when making custody decisions) (emphasis added); Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003) (holding that, because a caring relationship with both parents is important to a healthy upbringing, evidence that one parent is alienating a child from the other is an important factor to be considered in deciding whether custody should be changed) (emphasis added). Although we have recognized that a vulnerable child may need protection from the attempts of a parent to alienate him from the other parent, a parent should be expected to be able to resist any attempt to alienate his affections for his own child.
Second, even if our court were to adopt a new standard, the trial court’s finding that Sharp was alienating Keeler from this child was not supported by the evidence. Although Sharp’s actions might have been irritating to Keeler personally, they were not the type of actions that have been recognized as having an alienating effect. See Carver, 81 Ark. App. at 299, 101 S.W.3d at 261 (appellant’s interference with visitation was so extreme that the best interest of the children required that they be removed from the situation where there was no evidence to support appellant’s drug-abuse allegations, and the sexual-abuse allegations were unsubstantiated; moreover, during the investigation, the children were subjected to medical sexual-assault examinations and were denied visitation with their father even after the investigation concluded that the allegations were unsubstantiated).
There was no evidence that this eighteen-month-old child was alienated from his father despite the majority’s statement that “the record is replete with Sharp’s attempts to alienate Keeler from his son.” Alienation occurs when divorcing parents transform a child into a relationship weapon by engaging in patterns of behavior designed to destroy the child’s psychological connection with the other parent. See Thomas E. Schacht, Psy.D., Prevention Strategies to Protect Professionals and Families Involved In High-Conflict Divorce, 22 U. Ark. Little Rock L. Rev. 565, 592 (2000). This type of behavior was not present in this case. The trial court and the majority focus on Keeler’s lengthy testimony at a two-day hearing describing how he felt alienated from his son.
The majority notes that'Sharp’s attempts to alienate Keeler included her refusal to keep Keeler apprised of medical information, her refusal to have the child ready for visitation, her refusal of visitation when she decided it was in the child’s best interest, and the fact that she did not allow Keeler the first right to babysit when she could not be with the child. Great importance is also placed on Keeler’s feelings concerning the use of the mother’s surname rather than the father’s last name.1
While the trial court’s order stated that the parents were to communicate generally with each other about the health, education, and welfare of the child, there were no specific requirements that Sharp notify Keeler of any specific medical appointments or give him notice prior to any medical procedures. Moreover, the testimony showed that many attempts made by Sharp to inform Keeler of medical information were met with Keeler and his family members hanging up on her.2 Moreover, the testimony showed that there was a period just after the child’s biopsy that visits with Keeler were not allowed. Sharp testified that her decision was based on her concern for the child, as he had just been in the hospital and had a surgical procedure, and that he was still recovering. Once the child was diagnosed with hystiocytosis, he had to undergo chemotherapy, thereby weakening his immune system and requiring restricted access to the public. Testimony showed that the child became “clingy” with Sharp following chemotherapy treatments and would become upset when she left the room. Further, Sharp admitted that there were a couple of occasions when she did not call Keeler to babysit. However, she testified that on those occasions, the child was asleep, and she thought it would be disruptive to wake the child and take him to Keeler’s house for a short period of time.3 Taken together, none of these actions amount to alienation of this child from his father. Yet, the majority concludes that because of Sharp’s alienation of Keeler — not the child — a material change of circumstances existed to warrant a change of custody.
I dissent from the majority opinion for a second reason: it is clear that the trial court’s ruling was intended to punish the mother for what the trial court saw as her “evil” behavior. In these cases, the primary consideration is the best interest and welfare of the child. Carver, 81 Ark. App. at 296, 101 S.W.3d at 259. All other considerations are secondary. Id. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Id.
Below are excerpts from the trial judge’s oral ruling that demonstrate her intention to punish the mother by changing custody:
Now, the other thing about the babysitting thing is that you don’t consider your family to be quote/unquote babysitters, but yet when you send your child off to go with daddy you hand him a babysitter’s guide. So you don’t consider your family babysitting, but you consider this man a babysitter which is the most ludicrous thing that just undercuts this relationship between father and son and is huge evidence of parental alienation, and more importantly, of your undermining [the child’s] relationship with his father to this little guy’s detriment after I’ve told you not to. Then more evidence of contempt and parental alienation is that if this man shows up and the son is napping, he has to wait to pick him up until he wakes up, and I told both parties that he was to be ready at the time, and then he says that he’s waited 5 to 20 minutes while you’re changing him or putting him in his clothes or whatever. But then he testified, and this was not refuted by her testimony, that if [the child] is sleeping at his house and it’s time to take him home, by golly, he better get awakened and taken over to mama’s. It’s like we play by Ms. Cyndall’s rales or we don’t play at all. So when he has to wait around to pick up [the child] if he’s sleeping at mama’s, that he doesn’t get to make up his time most of the time. The worst testimony — well, there’s so much bad testimony —• one of the worst things that I heard today, Ms. Sharp, in addition to you denying this man visitation for no good reason, is this evil mind game thing that you’re playing with him, and that would be text messaging about surgery and saying, pray for him on this surgery, and you send it out to different people. Let me — maybe counsel can help me about which one that is — but you send it out to everybody, and you never tell him that your son is going in for surgery, and when you’re asked on cross-examination about that you say that you told him the time had come for your child to have ear surgery because he’s had eight ear infections. Well, that tells me two things. That’s well, when Ms. Cyndall speaks we’re going to do what she says. And, number two, that tells me that you knew he had ear surgery lined up, that he’s supposed to be the Ali Baba and have ESP and just know that you set up and appointment the day after his birthday for his ears to be — tubes in ’em, but you don’t tell him. You don’t tell him, and then when they ask you about what did you say, you try to say that this little e-mail that you sent out to everybody took care of letting him know that he was going to have surgery that day. Well, it didn’t. It didn’t advise him ahead of time. What it said was — let me find it.... “Everyone, thanks for all the prayers. Please continue to pray for [the child] during his surgery.” You never tell him about the surgery. You just send this e-mail out that says “pray for him.” Now, that is evil. That is so evil I can’t even understand why you’d do that, and then when asked why do you do these little things, you say, well, I did it to let him know.
[Mr. Keeler] doesn’t know what’s going on. Not only is that bad for [the child’s] relationship to have daddy come to the clinic, and he’s out there trying to come out of a groggy state, dad’s upset and agitated, as well he should be because mom’s sending out this little e-mail and she doesn’t even tell him what’s going on. That is so evil, and that is more evidence of parental alienation.
The games that are being played, ma’am, are by you, and they are evil, and they are detrimental to your child, and I don’t understand why you are doing it, and I’m ordering a psychological evaluation on you.
I’m not changing custody in any way to punish mom. I’m doing it to protect this young man, [the child], who deserves to have two parents who love him.
While the trial judge said that she was not changing custody to punish the mother, it is unclear how the change of custody was intended to protect the child. Throughout the trial court’s thirty-five page oral ruling, it is clear that the judge was concerned with protecting Keeler from Sharp’s “evil” behavior. The trial court’s finding that the mother’s lack of compliance warranted a change in custody allowed the court’s desire to punish the mother to override the primary consideration in the case, which was the welfare of the child. See Powell v. Marshall, 88 Ark. App. 257, 197 S.W.3d 24 (2004) (citing Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998); Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985)). A violation of the court’s previous directives does not compel a change in custody, Carver, supra. The majority outlines areas concerning the best interest of Keeler rather than the best interest of the child. This is evidenced by the statement that Sharp’s “actions appear to be another way for her to have control over Corbin to the exclusion of Keeler” and that “there was no testimony that [Keeler] was unfit to care for his child.”
While I agree that there was ample evidence of the immaturity of both parents in this case, I see no evidence supporting a finding that it was in the best interest of this eighteen-month-old child, while undergoing chemotherapy treatments, to be removed from his mother’s care and given to his father, who until that time had never even had overnight visitation, and allowing only four hours of supervised visitation with his mother a week. As the majority recognizes, there was no evidence to support the trial court’s decision restricting the mother’s visitation to only two hours, twice a week, supervised. If the focus in these cases is truly the best interest of the child, this case should be reversed.
Accordingly, I dissent.
The first complaint cited by the majority, and used to justify their reasoning, is that the mother continued to use the name Sharp instead of Sharp-Keeler or simply Keeler. The mother did not appeal the order in which the name was changed, but the order specifically directed only that the child’s birth certificate be changed — not that the mother ensure that all records maintained by third parties be changed.
Regarding this testimony the trial judge in ruling from the bench stated,“The doctor _tells you you’ve got an appointment at the bone doctor tomorrow in Little Rock, so you start calling [father]. You start calling him. Do you call him up and leave a message, oh my goodness, we have an appointment tomorrow at the bone doctor, we don’t know what’s going on, be there in Litde Rock? No. You leave a litde message that there’s something wrong with his arm. Just enough to get this man worried .... Then you start calling his family to really stir it up and get everybody worried. And you call his mother up. I’m not surprised she’s rude to you. Do you say, hold on, don’t be mad, I’m just calling to let you know that litde Corbin has a thing tomorrow.”
Keeler testified that he was “offended” when Sharp gave him a book on babysitting. He stated that he was offended because h’e was the child’s father, not a babysitter. It is noteworthy that in the trial court’s order, it directs that Sharp give Keeler first right when she needs a babysitter.