Presley v. Presley

Josephine Linker Hart, Judge,

dissenting. The parties’ divorce decree awarded the appellant custody of their three small children, but restricted her from having a roommate, male or female. The appellee subsequently petitioned for a change of custody on the basis that appellant had an overnight male guest when the children were present. The court changed custody to the appellee.

Shortly thereafter, the appellant requested that custody be returned to her. She alleged several facts supporting her contention that there had been a change of circumstances, one of which was the appellee had a female overnight guest in the presence of the children. The chancellor declined to change custody of the children, finding that the appellee had rectified his immoral behavior by marrying his female sexual partner and that it would not be in the best interest of the children to again be moved.

A chancellor is in the best position to view the parties and judge the credibility of witnesses, and his findings will not be disturbed absent an abuse of discretion. Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998). A party who seeks a change in custody must show a significant change of circumstances since the most recent decree. Id. If a significant change of circumstances is found, then the chancellor must award custody based on the best interest of the child. Id.

Based upon the evidence presented, the chancellor abused his discretion when he ruled the appellant failed to prove a substantial change of circumstances and that it would be in the best interests of the children to remain in the custody of their father.

There were significant changes in the circumstances of the children after custody was changed to the appellee. He changed the school they attend and either decreased or stopped the extracurricular activities in which they previously participated. Appellant left guns accessible to his small children, although he could afford to buy a gun cabinet. After a home-study investigator suggested that he place the guns in a gun cabinet, he then went out and purchased one. The youngest child, at age four, began constantly talking about guns and a Bowie knife, and threatened to blow his grandfather’s head off. The boys also began cursing and lying. The father did not deny this behavior, but explained that children will hear curse words on the playground and proclaimed that his oldest son is doing tremendously better because he now tells the truth more often than he lies.

Further, there was a significant change in the appellant’s circumstances. She testified she no longer had overnight guests of the opposite sex, no longer drank alcohol, and attended church with the children. The chancellor even complimented the appellant for her change to a positive lifestyle. The appellant did everything the court asked her to do, except pay child support. 'While I would not excuse the appellant’s child-support obligation, it should be noted that the appellee was in arrears on his child support when the chancellor gave him custody.

On the other hand, the appellee admitted he had spent the night with a woman on several occasions when the children were present. He tried to justify his immoral behavior by asserting that he did this with only one woman and subsequently married her a mere twelve days before the custody hearing. The chancellor found that the appehee had rectified his immoral behavior by the subsequent marriage. The act of engaging in a premarital sexual relationship is immoral from its commission. A subsequent marriage does not transform immoral conduct into moral conduct.

It is obvious that the chancellor imposed a different standard of conduct on the parties. The record shows that the chancellor consistently entered orders forbidding the appellant from having overnight visitors of the opposite sex in the presence of the children. This same prohibition was never placed on the appellee. The court found a change of circumstances and changed custody to the appellee the first time evidence was presented that the appellant engaged in the prohibited behavior. But when the evidence showed that the appellee engaged in the same immoral behavior, the chancellor swiftly forgave the appellee because of his twelve-day marriage. Common sense dictates that if engaging in premarital sexual relations is immoral conduct by a female, then the same is true for a male, unless a double standard is being applied. Although there was ample proof of changed circumstances, the chancellor chose to ignore it and employed a double standard. This is certainly an abuse of discretion.

Furthermore, the chancellor abused his discretion in holding the best interests of the children were served by leaving custody with the appellee. The appellee’s attitude toward the appellant was shown to be so hostile that it was affecting the children’s lives. Although he did not have anyone to care for the two school-aged children, he refused to allow the mother to keep the children after school. Instead, he took the children to work with him until he could place them in an aftercare program provided by the school. Thus, the children are required to remain at school after it dismisses for the day, instead of going home to the care of a parent. The appellee announced he would give the appellant only the visitation required by the court order and nothing more. He kept his answering machine on and the phone was not answered when the appellant called to speak to her children. Messages that she left on the machine went unanswered. Although the appellant is a pediatric nurse, the appellee kept the children from visiting her when they were sick contending he did not want them to get worse. He scheduled his wedding during the appellant’s visitation time, and expected appellant to allow the children to attend, which she did. The appellee refused to share information about their children. He maintained appellant should get information from the school. He failed to tell her when their oldest child was injured because no bones were broken. The appellee’s hostile attitude toward the appellant was so apparent, the chancellor admonished him to work on his attitude because it would be detrimental to the children.

Since the children were removed from their mother’s care, they have changed schools, are required to stay after school every day, have had extracurricular activities taken away, have had access to guns, and are now cursing and lying. They have not been allowed to visit with their mother, a nurse, when they are sick nor answer her phone calls. They have lived with a father who has exhibited a very hostile attitude toward their mother.

The chancellor’s finding that it is in the best interests of the children to remain with their father is incredible based on the evidence presented. It is my opinion the chancellor abused his discretion in making this finding.