Ark. Code Ann. § 9-13-101 (2026)

Research References

ALR.

Religion as factor in visitation cases. 95 A.L.R.5th 533.

Restrictions on parent's child visitation rights based on parent's sexual conduct. 99 A.L.R.5th 475.

Religion as factor in child custody cases. 124 A.L.R.5th 203.

Construction and Application by State Courts of Indian Child Welfare Act of 1978 Requirement of Active Efforts to Provide Remedial Services, 25 U.S.C. § 1912(d). 61 A.L.R.6th 521.

Validity, Construction, and Application of Placement Preferences of State and Federal Indian Child Welfare Acts. 63 A.L.R.6th 429.

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — General Principles, Jurisdictional Issues, and General Issues Related to “Best Interests of Child”. 99 A.L.R.6th 203 (2014).

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Conduct or Condition of Parents; Evidentiary Issues. 100 A.L.R.6th 1 (2014).

Sufficiency of Evidence to Modify Existing Joint Legal Custody of Children Pursuant to Consent Order and/or Divorce Judgment — Primary Custody, Visitation, Residence, and Relocation. 102 A.L.R.6th 153 (2015).

Comment Note: In Camera Examination or Interview of Child in Custody Proceedings. 9 A.L.R.7th Art. 6 (2015).

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey of Arkansas Law: Family Law, 6 U. Ark. Little Rock L.J. 159.

Arkansas Law Survey, Morgan, Family Law, 8 U. Ark. Little Rock L.J. 169.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Joint Custody, 26 U. Ark. Little Rock L. Rev. 407.

Note, Family Law — Relocation Disputes — From Paycheck to Paycheck: The Demotion of the Noncustodial Parent with the Creation of the Custodial Parent's Presumptive Right to Relocate (Hollandsworth v. Knyzewski), 26 U. Ark. Little Rock L. Rev. 615.

Annual Survey of Caselaw, Family Law, 26 U. Ark. Little Rock L. Rev. 921.

Annual Survey of Caselaw: Family Law,27 U. Ark. Little Rock L. Rev. 731.

Survey of Legislation, 2005 Arkansas General Assembly, Family Law, 28 U. Ark. Little Rock L. Rev. 357.

Case Notes

In General.

There is, in effect, no “final order” in a custody case, until the children have reached their majority; in essence, all orders of custody are “temporary” by their very nature. Purtle v. Committee on Professional Conduct, 317 Ark. 278, 878 S.W.2d 714 (1994).

Joint custody or equally divided custody of minor children is disfavored in Arkansas; however, subdivision (b)(1)(A)(ii) of this section specifically permits a court to consider such an award. Bailey v. Bailey, 97 Ark. App. 96, 244 S.W.3d 712 (2006) (decision under prior law).

Under Ark. R. App. P. Civ. 3(e), the appellate court did not have jurisdiction to entertain the father's argument pertaining to custody as he made no mention in notice of appeal of divorce decree, in which the trial court granted custody of the child to the mother; the mother could relocate to Australia with the child, and a standard visitation schedule with the child by the father was not feasible given the circumstances of the case. Rawe v. Rawe, 100 Ark. App. 90, 264 S.W.3d 549 (2007).

Circuit court did not err in awarding custody of the parties' child to the wife where the circuit court found that the wife was the primary caregiver; no evidence was presented to contradict the wife's testimony that she drank less since the separation and there was no evidence to show that the wife suffered from bulimia. Whitehead v. Whitehead, 2009 Ark. App. 593 (2009).

Where the husband of a mother involved in a custody modification was a sex offender and resided in the home with the mother's minor child, thereby creating a situation in which the father and the mother of the child could no longer agree who should have primary physical custody of the child, it was error for the circuit court to continue the joint custody based on the best interests of the child under subdivision (b)(1)(A)(ii) of this section because joint custody or equally divided custody of minor children was permissible. Peck v. Peck, 2009 Ark. App. 731 (2009).

Purpose.

The clear language of the section indicates that the legislature fully intended to abolish any legal preference given a parent when that preference is based on gender. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981); Riddle v. Riddle, 28 Ark. App. 344, 775 S.W.2d 513 (1989).

Applicability.

Although one parent contended that the other parent's aggressive behavior and demeanor constituted a material change because it could be likened to the type of behavior addressed in subdivision (b)(1)(A)(iii) of this section, that subdivision was not applicable because the parents did not share joint custody. Williams v. Geren, 2015 Ark. App. 197, 458 S.W.3d 759 (2015).

Attorney Ad Litem.

Assuming that the order awarding attorney's fees to the ad litem attorney was required to be sent to the Administrative Office of the Courts and that it was not, the mother did not show prejudice because this section allows the circuit court to order the parties to pay the entire amount of the ad litem's attorney's fees and there was extensive testimony at trial about both parties' incomes and ability to pay the fees. Szwedo v. Cyrus, 2019 Ark. App. 23, 570 S.W.3d 484 (2019).

Basis of Award.

In a divorce and custody matter, the trial court did not err in failing to award joint custody to the parties where the record plainly demonstrated that the parties could not cooperate well enough to share custody and where the evidence overall demonstrated that the mother was a better choice of custodial parent. Poole v. Poole, 2009 Ark. App. 860, 372 S.W.3d 420 (2009).

Circuit court did not err by granting sole custody of the children to the mother because the court relied on the facts that the mother had been the primary caregiver during the parties' marriage and that, after the divorce, the mother had continued to be the primary decision-maker regarding the children's educational and medical matters. Further, as to the alleged domestic abuse by the mother's second husband under subsection (c) of this section, many of the contentions concerning the abuse were credibility determinations to be decided by the circuit court. Montez v. Montez, 2019 Ark. App. 61, 572 S.W.3d 401 (2019).

—In General.

Children of tender years need a mother's care and the custody of the children should not be divided. Disheroon v. Disheroon, 211 Ark. 519, 201 S.W.2d 17 (1947).

While it is unusual to award custody of young children to any one other than their mother, it is not unheard of and where estimable evidence existed in support of the chancellor's award of custody of children to the father, the decision would not be reversed. Stephenson v. Stephenson, 237 Ark. 724, 375 S.W.2d 659 (1964).

Denial of a petition to take custody of a father's children was not against clear preponderance of evidence. Mabry v. Mabry, 243 Ark. 543, 420 S.W.2d 856 (1967).

Evidence sufficient to sustain court finding that husband was entitled to legal custody of children. Miller v. Johnson, 252 Ark. 697, 480 S.W.2d 574 (1972).

While it is permissible for the chancellor to make an award of custody or visitation after hearing the opinions of experts, he cannot delegate this judicial function to someone outside the court, especially to an expert employed by one of the parties. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

Where a person stands in loco parentis to a child, rather than a person or persons who simply have a relationship with the child, the finding of an in loco parentis relationship is different from the grandparent relationships found in prior Arkansas precedent because it concerns a person who in all practical respects is a parent; further, the status of in loco parentis permits, where circumstances warrant, that a stepparent be granted visitation with a stepchild after a divorce. Robinson v. Ford-Robinson, 88 Ark. App. 151, 196 S.W.3d 503 (2004), aff'd, 362 Ark. 232, 208 S.W.3d 140 (2005).

—Drug Use.

Chancellor did not abuse his discretion in considering prescription drug use of parent seeking custody as a factor in determining what was in child's best interest, where he found parent was taking some of the drugs for mood swings and child needed stability. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).

Chancellor could consider that parent seeking custody had gone to the trouble and expense of having tests for illegal drug use performed, because it went to the credibility of his testimony that he had stopped using illegal drugs, although the results of the tests were not introduced after opposing counsel objected to their admission. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).

—Grandparents.

Paternal grandparents could not prevail against mother in action over custody of children in absence of a showing that modification of decree was to the best interest of the children, it being firmly settled that, as between a parent and a grandparent, the law awards custody to the parent unless he or she is incompetent or unfit to have the custody of the children. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973).

In child custody matters, the court must keep in view primarily the welfare of the minor child, and, as between parent and grandparent, the law prefers the parent unless the parent is incompetent or unfit; also custody is not awarded to comfort the emotions of either parent. Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (Ct. App. 1979).

—To Mother.

Circuit court's award of custody to the mother was not clearly erroneous; the mother was the primary caregiver and her schedule allowed her to drop off and pick up the child each day from daycare, and the circuit court was free to credit testimony that the father had been abusive at times towards the mother's daughter from a previous relationship and that he had hit the mother on occasion. Thurmon v. Thurmon, 2016 Ark. App. 497, 504 S.W.3d 675 (2016).

Burden of Proof.

Father required to return minor child to the mother where the chancellor erred in shifting the burden of proof away from the father, as the party seeking custody modification, to require the mother, the custodial parent, to prove her ability to adequately provide a stable home environment for the child. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

Change in Custody Not Warranted.

The fact that the female children were soon to enter puberty was not a material change in circumstances allowing a change in custody from the father to the mother. Harrington v. Harrington, 55 Ark. App. 22, 928 S.W.2d 806 (1996).

Trial court erred by changing custody based on a mother's motion to relocate because there was no evidence to support a finding that the mother was attempting to move without permission of the court; moreover, the mother was not intentionally frustrating the father's visitation rights. Durham v. Durham, 82 Ark. App. 562, 120 S.W.3d 129 (2003).

Change of custody from mother to father was unwarranted as no material change in circumstances had occurred; a finding that the mother was in contempt was insufficient to justify such a change where the children were well-cared for, doing well in school, and the father's living conditions were less than desirable. Bernal v. Shirley, 96 Ark. App. 148, 239 S.W.3d 11 (2006).

Change in custody of two minor children from the mother to the father based solely on the children's preferences was improper as a determination first had to be made as to whether a material change in circumstances had occurred, and the trial court specifically found that there was no change in circumstances. Henley v. Medlock, 97 Ark. App. 45, 244 S.W.3d 16 (2006).

Appellate court erred in overturning a trial court order denying a mother's motion for a change of custody because the mother failed to prove a material change of circumstances so as to justify a change of custody; the child continued to thrive in the father's custody and was a good student despite conflicts between the parents. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

Record did not support the initial material change of circumstances finding, because the scattering of petty complaints did not amount to a failure to foster of a significant degree to support a finding of changed circumstances. Byrd v. Vanderpool, 104 Ark. App. 239, 290 S.W.3d 610 (2009).

Appellate court concluded that there was insufficient evidence of a material change of circumstances to warrant modification of custody, and that the award of joint custody was not in the child's best interest. Neither the evidence presented at the hearing nor the circuit court's final order demonstrated that the parties' bickering and name-calling was new or had significantly worsened. Hewett v. Hewett, 2018 Ark. App. 235, 547 S.W.3d 138 (2018).

Trial court did not err in denying the mother's motion for change of custody because joint custody was favored in Arkansas; the father stated willingness to develop a different type of communication with the mother; and, while the appellate court was troubled by the father's approach to joint custody, the appellate court was not left with a definite and firm conviction that the trial court made a mistake in finding there had not been a sufficient change in circumstances to warrant a change in the joint-custody arrangement, or that it would not be in the children's best interest to do so. Matthews v. Matthews, 2018 Ark. App. 552, 562 S.W.3d 901 (2018).

Change in Custody Warranted.

Where both father and mother had remarried, and the mother had moved the children several hundred miles from where the children's father and extended family reside, the several significant changed circumstances meant that it was in the best interest of the children to be in their father's custody. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994).

Although temporary custody had been awarded to the father, the chancellor's permanent award of custody to the mother was upheld. Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995).

Where parent to whom custody was originally awarded remarried to person convicted of misdemeanor narcotics offenses and harassment, and began to associate with others with criminal records in the presence of the child, such circumstances warranted a change in custody. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996).

Change of custody of thirteen-year-old boy from mother to father was affirmed where the chancellor made a difficult decision based on extensive and varied testimony, and was in a better position to determine the credibility of the witnesses and the best interest of the child. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).

Where the father presented sufficient evidence that the mother exhibited hostility, a lack of cooperation, withheld visitation, exhibited immorality and promiscuity which was evident from her admission that she lived with a man to whom she was not married but who was the father of her younger child, failed to remain fully employed, and demonstrated irresponsibility by failing to maintain a stable home for the child, the trial judge should have found that the totality of the evidence constituted a material change in the circumstances sufficient enough to warrant a change in custody to the father; the fact that the father was taking business classes, had remarried, and had purchased a home since the time of the original decree, supported his cause. Walker v. Torres, 83 Ark. App. 135, 118 S.W.3d 148 (2003).

Trial court did not err in ordering a change of custody from the mother to the father were the trial court (1) determined that there had been a material change in circumstances, the abuse of another child in the home, (2) gave a detailed account of the events constituting such a change, and (3) found it to be in the best interest of the child to order a change of custody. Miller v. Ark. Dep't of Human Servs., 86 Ark. App. 172, 167 S.W.3d 153 (2004).

Modification of a joint custody arrangement to give full custody to the father was appropriate based on the mother's behavior in the child's presence and the parties' disagreement over a custody schedule; although the trial court inappropriately included as a factual finding that the mother, who was African American, dated only white men, no challenge to that finding was preserved for review. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004).

Order changing custody of a child from the mother to the father was affirmed where, although trial court relied primarily on the “illicit sexual relationship” between the mother and her new husband prior to their marriage, there was other evidence of changed conditions, including the mother having six or seven different residences in the span of six years, while the father provided stability; further, while it was true that a change of circumstances of the noncustodial parent, including a claim of an improved life because of a recent marriage, was not sufficient, standing alone, to justify modifying custody, a noncustodial parent's remarriage could be considered as a factor in determining whether there had been a sufficient change in circumstances affecting the best interest of the child. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005).

Grant of father's petition to change custody was affirmed as evidence indicated that the mother had become increasingly unstable since the divorce, that she persistently failed to take the precaution of properly restraining the children with seatbelts in the car, and that she had amphetamines in her system when she got into a car accident. Cozzens v. Cozzens, 93 Ark. App. 415, 220 S.W.3d 257 (2005).

Trial court erred in finding that mother had failed to prove a material change in circumstances requiring a modification of custody; custodial father's arrests since the divorce and his demeanor at trial caused appellate court to be greatly concerned that he would, by his example, teach his son a confrontational approach to life that was certain to be self-destructive. Inmon v. Heinley, 94 Ark. App. 40, 224 S.W.3d 572 (2006).

Trial court should have granted father's motion to change custody of minor child with a form of autism where the evidence showed that the father made a difference in helping the child overcome the symptoms of his disorder, and the trial court's statement about discouraging custody cases resulted in reversible error. Harris v. Grice, 97 Ark. App. 37, 244 S.W.3d 9 (2006).

Father's petition for a custody change was granted in a case where a mother violated a court order by cohabitating with six different sexual partners and by failing to get along for the sake of the child; moreover, she lacked financial, residential, and employment stability. The change in custody was not due to the mother's sexual orientation. Holmes v. Holmes, 98 Ark. App. 341, 255 S.W.3d 482 (2007).

Mother's continued alienation of a father from the parties' son constituted a material change of circumstances that warranted awarding the father custody of the son and did not constitute punishment of the mother when the mother did the following: (1) refused to keep the father apprised of medical information, especially in light of the son's serious medical conditions; (2) refused to have the son ready for visitation; (3) refused the father visitation when the mother decided it was in the son's best interest to do so; and (4) refused the father the first right to babysit the son. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007).

Order awarding the father sole custody of the parties' three minor children was not clearly against the weight of the evidence, because there was a substantial amount of evidence that the children, who had essentially been in the sole custody of the father since the mother moved, were doing well in school, at home, and in their extracurricular activities. The children had a stable home environment as they had lived in the same home for more than five years, the children had a stable academic environment as they had all attended schools in the same school district or daycare facility, and the evidence was that they were performing well in school. Gray v. Gray, 101 Ark. App. 6, 269 S.W.3d 834 (2007).

Trial court did not err in finding that a change of circumstances existed and in granting a father's motion for a change of custody and relocation to Texas because the children's stepfather's conviction for child endangerment against his biological son was sufficient to support the finding that a material change of circumstances occurred to justify reevaluating the best interests of the children. Davis v. Sheriff, 2009 Ark. App. 347, 308 S.W.3d 169 (2009).

Joint custody between a mother and a father with an award of primary physical custody of their child to the mother rather than the father was not in the best interests of the child and was clearly against the preponderance of the evidence because the mother's husband was a registered sex offender and subdivision (d)(2) of this section showed a clear legislative policy that was opposed to children living in the home of a sex offender. Peck v. Peck, 2009 Ark. App. 731 (2009).

Change of primary physical custody from a mother to a father was in the best interest of the child where during the year that the father had temporary custody, the father had provided a stable, loving, nurturing environment in which his son had thrived, the father had facilitated visitation between the child and the mother and would continue to do so, and the mother had continued to accept child support from the father and had failed to offer support of any kind. Hatfield v. Miller, 2009 Ark. App. 832, 373 S.W.3d 366 (2009).

There was no error in a change of custody of two teenage children from a mother to a father where the mother had attempted to alienate the children from the father by influencing them to interpret every casual physical contact with the father as sexual abuse and where the mother was indifferent to the welfare of the children when she made a decision to relocate from Arkansas to Florida. Hanna v. Hanna, 2010 Ark. App. 58, 377 S.W.3d 275 (2010).

Trial court's final order continuing a joint-custody arrangement under subdivision (b)(1)(A)(ii) of this section was clearly erroneous. There was a mountain of evidence demonstrating that the parties could no longer cooperate in matters affecting their children, including the father's unilateral suspension of the mother's custody, refusal to provide school information, and numerous unsubstantiated complaints to the police and the department of human services. The mother exposed the children to her new husband and exposed the children to smoke in the home. Doss v. Miller, 2010 Ark. App. 95, 377 S.W.3d 348 (2010).

In modifying a child custody arrangement, the trial court did not clearly err in finding that joint custody under subdivision (b)(1)(A)(ii) of this section could not continue and that it was in the best interests of the children that primary custody be awarded to the father; the parties stipulated to changed circumstances based on their inability to communicate. In considering the children's best interests, the court noted that their son saw his parents together in an occasional relationship, then saw his dad dating other women; the parents did not present a good reality for their son. Collier v. Collier, 2012 Ark. App. 146 (2012).

Trial court did not err in changing custody to the legal father, after the legal father saw photographic evidence the biological father hit one child on the back hard enough to leave a mark, the children had to be treated for flea bites after arriving for visitation, and the children expressed a desire to live with the legal father. Lowder v. Gregory, 2014 Ark. App. 704, 451 S.W.3d 220 (2014).

Child custody was modified to joint custody with shared physical custody because there was a material change in circumstances due to the parties each remarrying and the rising level of discord between the parties following their divorce. Moreover, both parties were capable parents who loved their children and were equally involved with their activities and the modified custody order was carefully fashioned to reduce the need for the parties' interaction in addressing the needs of their children. Hoover v. Hoover, 2016 Ark. App. 322, 498 S.W.3d 297 (2016).

Regardless of whether joint custody was favored under this section, such an award was reversible error when the cooperation between the parties was lacking, which was the case here; there was testimony by both parties that they had reached a level of discord and lack of cooperation to constitute a material change in circumstances sufficient to change their previously agreed joint-custody arrangement, and the appellate court upheld the trial court's award of primary custody to the mother. Acklin v. Acklin, 2017 Ark. App. 322, 521 S.W.3d 538 (2017).

Circuit court was not clearly erroneous in finding that it was in the children's best interest to change custody to their father, who had argued that the children with him received more consistent care, a more predictable living environment, clearly segregated sleeping arrangements, and a clear school schedule; the circuit court was free to consider that the mother was dating a married man while still living with her new husband, and the children knew it. Cordell v. Cordell, 2018 Ark. App. 521, 565 S.W.3d 500 (2018).

Change from joint custody to custody with the father upheld; the inability to coparent and cooperate constitutes a material change in circumstances. Case v. Van Pelt, 2019 Ark. App. 382, 587 S.W.3d 567 (2019).

Child's Best Interest.

Trial court did not err in finding that it was in the best interest of the parties' youngest child to be placed in the mother's custody, which separated her from her three half-sisters, because the trial court heard all of the conflicting evidence, determined the credibility of the witnesses, and weighed the evidence, which supported the award of custody, where the child was doing well in the mother's care since the parties' separation and there was evidence that the mother would not frustrate the relationships between the child and her father and her half-sisters. Starr v. Starr, 2015 Ark. App. 110, 455 S.W.3d 372 (2015).

Circuit court did not clearly err in awarding the parties joint custody with the mother being the primary custodial parent; despite the mother's lifestyle and romantic relationships, the primary consideration in child-custody cases is the welfare and best interest of the children. The record showed that the mother had been the primary caregiver before the parties' separation and that she left because the father had kicked her out of their home; the record further showed that the relationship between the mother and father began when the mother was only 13 years old and that the father kidnapped her to Mexico, which the circuit court found reflected poorly on his character. Hortelano v. Hortelano, 2017 Ark. App. 98, 513 S.W.3d 890 (2017).

As to the father's assertion that the circuit court failed to consider the facts about the mother's lifestyle and the absence of her boyfriend from the hearing, the circuit court was not required to make specific findings on every allegation in considering best interests for purposes of child custody, and if the father wanted such findings, he could have asked for them under Ark. R. Civ. P. 52; even so, the court's oral statements showed that the court weighed the circumstances and the court stated that it had considered all the evidence. Hortelano v. Hortelano, 2017 Ark. App. 98, 513 S.W.3d 890 (2017).

Circuit court's award of primary custody to the wife was in the children's best interest given the testimony of the husband's erratic behavior and irregular habits, the children's reluctance and eventual refusal to attend supervised visitation with him, and the attorney ad litem's recommendation. Moreover, the circuit court witnessed first-hand the husband's erratic behavior during his testimony. Williams v. Williams, 2020 Ark. App. 204, 599 S.W.3d 137 (2020).

Conduct of Parent.

Chancellor did not find that mother was an unfit mother based solely on her homosexuality; chancellor's primary focus was on mother's conduct, not merely her status or sexual preference. Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995).

Evidence concerning the moral character of a parent is relevant to the best interest of the child and the issue of parental custody. Stone v. Steed, 54 Ark. App. 11, 923 S.W.2d 282 (1996).

Arkansas courts have never condoned a parent's promiscuous conduct or lifestyle when conducted in the presence of the child. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004).

Award of joint custody to parties in a divorce proceeding was clearly erroneous considering the attitudes of the parties toward each other and toward their respective roles, the fact that a basis of the husband's request for joint custody was his concern that the wife might relocate if she had sole custody, and the parties' differing opinions as to disciplining the children. Bailey v. Bailey, 97 Ark. App. 96, 244 S.W.3d 712 (2006).

Where the husband was awarded temporary child custody based on an isolated incident in which the wife had an anxiety attack and threatened to kill herself and her children after she was terminated from employment, the trial court did not err by awarding the wife permanent child custody. The husband also had problems with anxiety and stress management; the wife's anxiety attack was an isolated incident; and the psychological examiners recommended that she be awarded child custody. Rasberry v. Rasberry, 2009 Ark. App. 594, 331 S.W.3d 231 (2009).

Trial court did not clearly err in awarding custody of divorcing parties' children to the husband based on the welfare and best interest of the children where there was evidence that the children were exposed to the wife's adulterous relationship, which was a matter of credibility for the trial court. Moreover, both parties testified that they would encourage a good relationship with the other parent, and it was a credibility determination for the trial court as to whether the husband would follow the court-ordered visitation schedule and facilitate a good relationship. Magee v. Magee, 2013 Ark. App. 108 (2013).

Default.

Circuit court abused its discretion by denying a mother's request to set aside the default custody award under Ark. R. Civ. P. 55(c)(4) because the need to consider the best interest of the child constituted an “other reason justifying relief”. Specifically, the circuit court's primary focus was on the mother's failure to file a timely response to the complaint for divorce, rather than the best interest of the child, and nothing in the record indicated that the circuit court considered the mother's abuse allegations when evaluating her motion to set aside the default judgment. Jones v. Jones, 2019 Ark. App. 596, 591 S.W.3d 831 (2019).

Wife's arguments that the default divorce judgment entered against her was void, that she was entitled to a damages hearing, that the default judgment exceeded the requested relief, and that the default custody award ignored the statutory preference for joint custody were not preserved for appellate review where the wife failed to raise the specific concerns at the motion hearing below. Glover v. Glover, 2020 Ark. App. 89, 595 S.W.3d 54 (2020).

Domestic Violence or Abuse.

Award of custody of the parties' three sons to the husband in the parties' divorce decree was appropriate because, without a statutory definition of “pattern of domestic abuse,” the question was one of fact, not law; therefore, the appellate court was unable to say that the trial court was clearly erroneous in finding that two incidents of domestic abuse by the husband against the wife approximately seven years apart, with an intervening act of domestic abuse by the wife upon the husband, did not constitute a pattern of domestic abuse under subsection (c) of this section. Oates v. Oates, 2010 Ark. App. 346 (2010).

Award of custody of the parties' three sons to the husband in the parties' divorce decree was appropriate because the appellate court disagreed with the wife's contention that the trial court should have considered each allegation of abusive conduct, even if it did not amount to “domestic abuse.” Subsection (c) of this section requires that a person engage in a pattern of domestic abuse; if the acts did not rise to the definition of domestic abuse, they cannot be considered for purposes of the presumption. Oates v. Oates, 2010 Ark. App. 346 (2010).

In denying appellant father's motion to change child custody, the trial court did not err in failing to apply the presumption in subdivisions (c)(1) and (2) of this section that it was not in the best interest of a child to remain in the custody of an abusive parent because appellee mother's poor housekeeping was not a form of domestic violence. Loftis v. Nazario, 2012 Ark. App. 98 (2012).

Denying the husband visitation with the couple's child was not an abuse of discretion where the circuit court was bound to consider its earlier finding of domestic abuse in determining visitation, and the testimony supported the finding that visitation was not in the child's best interest. Goodson v. Bennett, 2018 Ark. App. 444, 562 S.W.3d 847 (2018).

Evidence.

Testimony that parent had sexually abused another child was irrelevant in custody proceeding, because neither a proper link had been made connecting the allegation to the case at hand nor had a proper investigation been made into the allegations, which were denied by the parent. Rector v. Rector, 58 Ark. App. 132, 947 S.W.2d 389 (1997).

Trial court did not clearly err in awarding custody to the father where it was clear that the trial court determined that the best interests and welfare of the children would be served by a wholesome environment and that such an environment would exist with the father and not the mother, who had moved the children to several different states and had several different live-in boyfriends. Dorothy v. Dorothy, 88 Ark. App. 358, 199 S.W.3d 107 (2004).

Order awarding custody of an illegitimate child to the child's father was proper because although the appellate court was troubled by the fact that during the pendency of the custody dispute the father was accused of raping the mother and pled guilty to falsely imprisoning the mother, the trial court's factual findings made it clear that it found the mother to be incredible. Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007).

Fault.

Fault in the divorce is not necessarily the determining factor in awarding custody since an award of custody is neither a reward nor a punishment for a parent; the children's welfare is the controlling consideration. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).

Grandparents.

Where the mother's parental rights were terminated, the trial court did not abuse its discretion by denying the maternal grandparents' motion to intervene in the adoption proceedings. The maternal grandparents lost any right they had to custody and visitation of the children; this section did not apply because they were no longer grandparents. Burt v. Ark. Dep't of Health & Human Servs., 99 Ark. App. 402, 261 S.W.3d 468 (2007).

The plain language of this section, read as a whole, shows an intent to allow a grandparent to intervene, and even be awarded custody, when there is an existing custody suit; it does not allow the grandparent to create the custody dispute or initiate a custody action. Therefore, a trial court did not err by dismissing a grandfather's petition for custody of his granddaughter since there was no divorce or custody dispute in which to intervene. Pfeifer v. Deal, 2012 Ark. App. 190 (2012).

Record was replete with evidence that would have supported a finding that appellant was unfit, given that (1) the child was made to be a part of attempts to falsely accuse a family member of sexual abuse, (2) none of the accusations, which caused the child to be examined at least three times, were substantiated, (3) although appellant's wife was alleged to have made all but the last allegation, appellant said he knew she made them and that he was the one who told her to do so, (4) there were no further abuse allegations once the child was removed from the father's custody, and (5) the father repeatedly violated a court order by not supporting the child, failing to exercise visitation, and thwarting visitation efforts by a grandmother, and yet still the trial court stopped short of making an unfit finding; the trial court erred in awarding custody to the father's mother without finding that the father was unfit, and thus the case was remanded. Faulkner v. Faulkner, 2013 Ark. App. 277 (2013).

Indian Child Welfare Act.

Court erred in granting custody of twins to their mother's fourth cousin instead of to her third cousin, with whom the twins had been living as it failed to comply with the placement preference in the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-1963, and the “best interest test” was to be weighed against the standard of maintaining the integrity of the Nation, its culture, its children, and its progression through time not to become extinct. Cutright v. State, 97 Ark. App. 70, 244 S.W.3d 702 (2006).

Joint Custody.

Although joint custody was favored in Arkansas under this section, a mother made no request for joint custody where the parties were competing for full custody, and the best interest of the child would not have been served by such an award at any rate. Black v. Black, 2015 Ark. App. 153, 456 S.W.3d 773 (2015).

Although the legislature amended this section to state that an award of joint custody is favored, joint custody is by no means mandatory, and custody awards are to be made solely in accordance with the welfare and best interest of the children; the trial court did not clearly err in finding that it was in the girls' best interest to be placed in the mother's primary custody, as she was the primary caregiver, and the trial court did not make a mistake in rejecting the father's request for joint custody. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18, 465 S.W.3d 18 (2015).

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but § 9-10-109 expressly provides that, once paternity has been established, the court is ordered to follow “the same guidelines, procedures, and requirements … as if it were a case involving a child born of a marriage in awarding custody [and] visitation.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under this section. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Award of joint custody was upheld, despite the concerns of a mother, because a father presented evidence that contradicted or explained each of her concerns; although the father had made mistakes in the past, he testified that his priorities had changed since the birth of his child. Awards of joint custody are favored under this section, and the circuit court noted its concern about the mother's anger and found that the father would better ensure frequent and continuing contact between the child and the mother. Montemayor v. Rosen, 2015 Ark. App. 597, 474 S.W.3d 114 (2015).

Circuit court did not err in entering a final modification order awarding true joint custody with the time to be equally split between the parents because the father had not abandoned the marital home, the children did not spend the majority of their time with the mother, material changes of circumstance had occurred, the parties could work together, and the children needed stability in their lives. Neumann v. Smith, 2016 Ark. App. 14, 480 S.W.3d 197 (2016).

Trial court erred when it modified a previous custody decision and awarded the parties joint legal custody, even though a material change in circumstances had occurred, because the parents were unable to agree on anything or cooperate. Stibich v. Stibich, 2016 Ark. App. 251, 491 S.W.3d 475 (2016).

Circuit court improperly granted a father's petition to modify custody because its finding that joint custody was in the children's best interest was clearly erroneous; the circuit court's oral findings on the cooperation in the parties' relationship contradicted its oral and written finding that joint custody was in the children's best interest where the former detailed how cooperation between the parties was utterly lacking. Hongyang Li v. Yi Ding, 2017 Ark. App. 244, 519 S.W.3d 738 (2017).

Circuit court clearly considered awarding joint custody under this section, but the mother's own unwillingness to consider joint custody was a contributing factor to the circuit court's decision not to award joint custody, and a party could not complain of an alleged erroneous action of the circuit court if the party induced such action. Wilhelm v. Wilhelm, 2018 Ark. App. 47, 539 S.W.3d 619 (2018).

Trial court did not clearly err in awarding joint custody to the mother and father; the trial court properly considered the possibility that the mother might move to Ohio in making its custody decision, the trial court was not bound by the guardian ad litem's recommendation, and while the mother alleged that the father was inattentive when she filed the emergency petition for primary custody, the trial court had concluded that her proof was insufficient. Williams v. Williams, 2019 Ark. App. 186, 575 S.W.3d 156 (2019).

Trial court did not err in denying the father's request for joint custody; although both the mother and the father were good parents who loved their son, the level of cooperation and communication that was required for joint custody was lacking, as the trial court found, inter alia, that the parents failed to communicate and cooperate regarding the child's refusal to eat at the mother's home, that they could not agree on overnight visitation for the father until attorneys were involved, and that they had not agreed on extracurricular activities. Carrillo v. Ibarra, 2019 Ark. App. 189, 575 S.W.3d 151 (2019).

Circuit court did not clearly err in finding that joint custody was in the children's best interest, where the appellant testified that the parties had raised the children as a team, she had agreed when the parties separated to joint custody with equal time, and credibility determinations are for the circuit court. Grimsley v. Drewyor, 2019 Ark. App. 218, 575 S.W.3d 636 (2019).

Trial court's award of joint child custody was not inconsistent with the court's grant of a divorce on general indignities grounds because different considerations were required to make general-indignities and joint-custody findings. Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38 (2019).

Joint custody award upheld despite the mother's argument that the parties were unable to cooperate and communicate effectively; most joint-custody situations involve some amount of disagreement, the circuit court carefully considered all the evidence and found that joint custody would maximize the child's time with both parents and reduce the number of custody exchanges, which was the source of a significant amount of the conflict between the parties, and the appellate court recognized the circuit court's superior position to evaluate the witnesses and the child's best interest. Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38 (2019).

There was no clear error in the circuit court's decision to maintain a joint-custody arrangement as the child was a happy, healthy, intelligent child, and there was nothing in the record that demonstrated that parental discord had affected the child's health and welfare. Pace v. Pace, 2020 Ark. 108, 595 S.W.3d 347 (2020).

Circuit court did not err in modifying joint custody to award the mother sole custody, because (1) despite a statutory preference for joint custody, evidence of the parties' level of discord and lack of cooperation, resulting in a no-contact order, was a material change in circumstances, and (2) the father's tumultuous remarriage and anger issues showed that awarding custody to the mother was in the children's best interest. Roberts v. Roberts, 2020 Ark. App. 60, 595 S.W.3d 15 (2020).

Keeping Siblings Together.

Although the value of keeping siblings together is a factor in determining what is in a child's best interest, the awarding of child custody based solely on the presumption that siblings should be kept together is contrary to this section. Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000).

Trial court's decision divesting custody of two children from their parents and awarding custody to their maternal grandparents was clearly erroneous as evidence that the children had sustained various injuries and illnesses while in their father's care did not support a finding that he was an unfit parent, and the children had a half-brother (the father's child with his current wife) with whom they shared a significant family relationship. Dunham v. Doyle, 84 Ark. App. 36, 129 S.W.3d 304 (2003).

Modification.

The party desiring to change the custody of a child whose custody has been judicially determined in a divorce decree, must show altered conditions affecting the welfare of the child or that material facts as to the situation were not made known to the court in the original proceedings. Marr v. Marr, 213 Ark. 117, 209 S.W.2d 456 (1948).

Conditions found to have altered the circumstances under which the original custody decree was entered to such an extent as to warrant a change of custody to benefit the children. Powell v. Woolfolk, 233 Ark. 893, 349 S.W.2d 657 (1961).

A judicial award of custody would not be modified unless it was shown that there were changed conditions which demonstrated that a modification of the decree was to the best interest of the children. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973).

In proceedings to modify order for custody of children, violation of court orders or contempt of court is a factor to be taken into consideration by the court in the exercise of its discretion to grant or deny a modification of custody orders but is not so conclusive as to require the court to act contrary to the best welfare of the child. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975).

A judicial award of custody should not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree is in the best interest of the child, or when there is a showing of facts affecting the best interest of the child that were either not presented or were not known by the chancellor at the time the original custody order was entered. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

The polestar in making a relocation determination is the best interest of the child and the trial court should take into consideration the following matters: (1) the reason for the relocation; (2) the educational, health, and leisure opportunities available in the location in which the custodial parent and children will relocate; (3) visitation and communication schedule for the noncustodial parent; (4) the effect of the move on the extended family relationships in the location in which the custodial parent and children will relocate, as well as Arkansas; and (5) preference of the child, including the age, maturity, and the reasons given by the child as to his or her preference. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003).

Relocation alone is not a material change in circumstance, and a presumption exists in favor of relocation for custodial parents with primary custody; the noncustodial parent should have the burden to rebut the relocation presumption, and the custodial parent no longer has the obligation to prove a real advantage to herself or himself and to the children in relocating. Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003).

Custody changed from mother to father in a modification action brought a year after the divorce where the mother's situation had radically improved, even though the father's situation had not substantially changed since the divorce. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003).

For a change of custody, the chancellor must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, the chancellor must then determine who should have custody with the sole consideration being the best interest of the children. Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004) (decided under prior law).

Joint custody or equally divided custody of minor children is not favored in Arkansas, and when the parties have fallen into such discord that they are unable to cooperate in sharing the physical care of the children, this constitutes a material change in circumstances affecting the children's best interest. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004) (decided under prior law).

Because the trial court erred in labeling a change of custody in favor of the father temporary in nature, a subsequent change of custody decision for the mother was reversed and remanded because the material change in circumstances standard should have been used; this applied to every custody determination after an initial award in favor of the mother. Hodge v. Hodge, 97 Ark. App. 217, 245 S.W.3d 695 (2006).

Where a mother made unsubstantiated sexual abuse allegations, a trial court did not err by awarding custody to a father in a family-in-need-of-services case under § 9-27-338, because it was not in the child's best interest to return to the mother where the child was doing better while not in her custody; moreover, the father did not have to show a material change in circumstances since this was not a regular custody proceeding. Judkins v. Duvall, 97 Ark. App. 260, 248 S.W.3d 492 (2007), overruled in part, Mahone v. Ark. Dep't of Human Servs., 2011 Ark. 370, 383 S.W.3d 854 (2011).

Even recognizing a father's bad conduct in creating trouble concerning the interrelationships among himself, the child, and the child's mother, the court could not overlook the evidence that was before the trial court and could not conclude that it rose to the level that would constitute a change of circumstances, especially in light of a doctor's testimony that a reduction in visitation would not be beneficial to the child. Williams v. Ramsey, 101 Ark. App. 61, 270 S.W.3d 345 (2007).

Substantial evidence supported findings that a father, in contravention of court orders, continued to refer to his current wife as the child's “Mommy” and that he failed to give the child her medication. The evidence established that the father willfully and intentionally violated prior court orders and supported the trial court's holding him in contempt. Williams v. Ramsey, 101 Ark. App. 61, 270 S.W.3d 345 (2007).

Where the parties could no longer make joint decisions relating to the child, they lived in different counties, and the mother had neglected the child's medical needs, the trial court clearly erred in finding that the father failed to establish a material change in circumstances to justify a change of child custody. Because joint custody had previously been awarded and the mother had never been awarded primary custody, it was an erroneous application of the facts to find that the child should remain with her; the trial court erroneously gave a preference to the mother in its analysis, which was contrary to subdivision (a)(1)(A)(i) of this section. Jones v. Jones, 2009 Ark. App. 571 (2009).

Trial court did not err in granting a mother's motion for a directed verdict and in denying a father's petition to change primary custody of his child because the father did not make a prima facie case of a material change of circumstances; the child was situated in the same home and school and was doing “better” in that setting than he was at the time a previous custody order was entered, and the father's accusations that the child's personal hygiene was being neglected did not constitute a material change of circumstances. Lawhead v. Harris, 2010 Ark. App. 77, 374 S.W.3d 71 (2010).

Circuit court did not err in determining that there had been a material change of circumstances and that it was in the best interest of the children to award custody to a father because the children had extremely poor academic performance, were failing, and had behavioral problems at school, that there was little hope for improvement in their after-school care situation, and that the father's efforts to deal with the children's “dismal performance” offered hope for academic and behavioral improvement; the circuit court did not clearly err in finding that the mother had moved to another state without asking for modification to visitation and that the purpose of her move was to frustrate the father's visitation. Harris v. Harris, 2010 Ark. App. 160, 379 S.W.3d 8 (2010).

Although the trial court clearly did not approve of a mother's adulterous conduct both before and after a divorce, proof of that conduct alone did not require a change in custody to the father where the trial court concluded that the interests of the children were better served by leaving primary custody with the mother. Valentine v. Valentine, 2010 Ark. App. 259, 377 S.W.3d 387 (2010).

Finding that there was a change in circumstances sufficient to modify a custody order was not clearly erroneous, as testimony showed that a mother allowed various men to stay overnight in the mother's home and also allowed one man to live there full-time in the presence of the mother's children; testimony showed that the father's household was stable. Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489 (2010).

Because the circuit court was never made aware, prior to a hearing on a father's change-of-custody motion, of the substantial amount of time a child was spending at the maternal grandparents' house or the issues regarding the father's visitation, the evidence supported a finding of a material change in circumstances; therefore, the circuit court did not err in finding that changing custody of the child from the mother to the father was in the child's best interest. Chaffin v. Chaffin, 2011 Ark. App. 293 (2011).

Because a mother presented evidence that the father was effecting an alienation of her parental rights based on his erroneous interpretation of the visitation guidelines, the circuit court erred by failing to view the evidence in a light most favorable to the mother and by exercising its fact-finding powers. Wagner v. Wagner, 2011 Ark. App. 475 (2011).

In reading the order's plain language, the trial court found that a material change of circumstance had not occurred for modification of custody purposes; if the father had specific findings he wanted the trial court to make, he could have requested them, but as the record stood, he did not offer a reason to reverse the order. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

There was ample factual support in the record for the trial court to reject the father's change-of-custody and modification argument; while the parental tension was apparently significant, it did not, in the trial court's view, create a material change in circumstance finding, and the decision not to modify custody was affirmed. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

Even if it was assumed that the trial court found a material change of circumstance, the order could be reasonably read to determine that the trial court did not modify custody to the father because it found that it was in the child's best interest to remain in her mother's custody, and the trial court did not improperly apply the law just because its order recited an alternative basis to support the ultimate ruling. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

To the extent that the father argued the order was to be reversed or scrutinized differently because the trial court in this case had a history of misapplying the law in custody cases, the argument was rejected; there was no evidence supporting the father's claim that the trial court imposed a heightened burden in this custody modification case. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

Father claimed the mother's remarriage and alleged favoring of her new baby constituted a material change in circumstances supporting modification, but remarriage alone was not a sufficient reason to change custody, there was testimony that the mother had been reassuring to the child, and while her discipline techniques might not have been the best, they were not done abusively, and on the disputed record, these findings were not clearly erroneous. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

Father claimed the mother's behavior in making disparaging remarks and keeping the child from him constituted a material change in circumstances supporting modification, but there was testimony that the mother's actions did not rise to the level of alienation and both parties acted disrespectfully, and the trial court ordered that a calendar be used and the parties communicate directly, and the findings in this regard were not clearly erroneous. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

Counseling was ordered to continue, and the trial court's decision not to use the drastic measure of a change and modification of custody because the mother dropped out of therapy was not clearly erroneous; violating a court's order did not, in and of itself, compel a change of custody. Baker v. Murray, 2014 Ark. App. 243, 434 S.W.3d 409 (2014).

Natural-Parent Preference.

A court may award split or full custody of a child to a stepparent, but the preference for awarding custody to a natural parent must prevail unless it is established that the natural parent is unfit. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

This case did not fit one of the narrow exceptions to the parental preference rule; it was an initial award of custody involving a biological father who did not abandon the child for a substantial period of time, and thus the trial court erred in awarding custody of the child to the father's mother absent a finding that the father was unfit. Faulkner v. Faulkner, 2013 Ark. App. 277 (2013).

Parental Visitation Rights.

Since this subchapter does not give a county chancery court jurisdiction to address the issue of visitation, collateral matters such as visitation cannot be raised as a defense. State, Jefferson County Child Support Enforcement Unit v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992).

Under this subchapter, a state court could not directly determine visitation; it also could not indirectly determine visitation by making payment of child support dependent upon visitation. State, Jefferson County Child Support Enforcement Unit v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1992).

A chancery court has the power to use its contempt power to enforce its order awarding visitation to a stepparent in the context of a divorce decree. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998).

The parties' past problems with visitation alone were not dispositive of the questions of the integrity of the mother's motives for seeking the move to Texas, or the likelihood of her compliance with visitation orders in the future. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000).

The trial court should have applied the factors to be considered when a custodial parent seeks to move with the parties' children to a place so geographically distant as to render weekly visitation impossible and impractical, and required mother to bear one-half the transportation costs where her new job resulted in a substantial raise in pay, and her move to Texas was wholly voluntary. Friedrich v. Bevis, 69 Ark. App. 56, 9 S.W.3d 556 (2000).

This section does not confer jurisdiction on the trial court to terminate parental rights. The statute deals with child custody and visitation issues and does not address the termination of parental rights. Hudson v. Kyle, 352 Ark. 346, 101 S.W.3d 202 (2003).

Trial court did not clearly err in structuring a specific visitation schedule regarding the mother's and the father's son after it granted relocation to the mother, who moved to Virginia because her husband had obtained new employment in that state; while the visitation order provided for the son to spend virtually every holiday with the father, each spring break, and one weekend each month in which there was no holiday or other school vacation, the order also provided that the son spend all remaining time at the mother's household. Rebsamen v. Rebsamen, 82 Ark. App. 329, 107 S.W.3d 871 (2003).

Modification of father's visitation rights was warranted where elimination of daily visits would lessen the need for contact between the parties; the social worker testified that the animosity between the father and mother caused the children a great deal of stress and some type of modification would be in the best interest of the children, and that it was necessary to keep the parties on neutral territory during pick up and drop off. Meins v. Meins, 93 Ark. App. 292, 218 S.W.3d 366 (2005).

Although a mother's continued alienation of a father from the parties' son warranted a change in custody, supervised visitation for the mother was not warranted when nothing in the psychologist's report indicated that the mother had mental-health issues that rendered her incapable of caring for the son during visitation and none of the evidence revealed that the mother had mistreated the son or neglected the son's needs during the time the son was in the mother's care. Sharp v. Keeler, 99 Ark. App. 42, 256 S.W.3d 528 (2007).

Marriage of the biological parents of a child, who was born while the mother was married to her ex-husband, was not a change of circumstances that warranted terminating the ex-husband's visitation rights which were granted to him in a divorce decree; moreover, it would not have been in the child's best interests to do so because the child had known the ex-husband as his father his entire life and had enjoyed visitation with him since his mother had divorced, and his older brother, whom he had known since birth and with home he had a good relationship, lived with the ex-husband and the record indicates that the brother was not welcome in the biological parents' home and, therefore, terminating the ex-husband's visitation would also disallow the child the opportunity to maintain his relationship with his brother. Hunter v. Haunert, 101 Ark. App. 93, 270 S.W.3d 339 (2007).

Father's argument that a trial court erroneously refused to enforce visitation was rejected because, not only did the father fail to object to the visitation arrangement set out by the trial court, he suggested it in the first place. The father stated he did not want to force his children to enter into a relationship with him, but he also did not want them prevented from contacting him if they so desired. Norman v. Cooper, 101 Ark. App. 446, 278 S.W.3d 569 (2008).

Pursuant to this section, denial of altered visitation, based on the child's best interests, was proper because the child's mother had moved only about an hour's drive away, and the father still enjoyed visitation for at least part of every weekend. Lee v. Eubanks, 2009 Ark. App. 838 (2009).

Circuit court did not limit a father's visitation as punishment for contempt; the circuit court limited visitation under its continuing authority to modify visitation, at the request of the mother, and the father's disregard for the orders of the circuit court and disdain in his conduct for the mother, in the presence of the parties' children, sufficiently supported the necessary finding of a material change in circumstances to modify visitation. Goodman v. Goodman, 2019 Ark. App. 75 (2019).

Preference of Child.

Trial court properly granted a father's motion to change custody on the ground that a change of circumstances had occurred because the children expressed a strong, well-reasoned preference to return to Arkansas and their father's custody; the children did not oppose a short-term move to Missouri for their stepfather's career, but did not want to move to Wisconsin indefinitely. Myers v. McCall, 2009 Ark. App. 541, 334 S.W.3d 878 (2009).

Trial court did not err in denying a father's motion to modify custody because there was no reversible error in the trial court's finding that a daughter was not of a sufficient age and capacity to reason that the trial court could consider her preference as to custody; the trial court was in a better position than the Court of Appeals to judge the credibility of the witnesses, including the daughter. Stacks v. Stacks, 2009 Ark. App. 862, 377 S.W.3d 265 (2009).

Trial court did not err in denying a father's motion to modify custody because its finding that a daughter had not expressed a preference as to custody was not clearly erroneous when the trial court was faced with conflicting testimony, with the father testifying that the children wanted to live with him, the mother disputing that contention, and the daughter testifying that she did not want to hurt anyone's feelings and not expressing a clear preference; the daughter's preference alone was not determinative of which parent would have custody. Stacks v. Stacks, 2009 Ark. App. 862, 377 S.W.3d 265 (2009).

Circuit court did not err in awarding joint legal custody of the male child to the mother and the father and in awarding primary physical custody of the child to the father because the child was doing significantly better, both behaviorally and gradewise, in his father's custody; although the father's living arrangements were far from ideal, he testified — apparently, to the circuit court, credibly — that he would soon be approved for a more appropriate home; and the child testified that he was happier with his father, and the circuit court could take that desire into consideration. Jackson v. Littleton, 2018 Ark. App. 511, 561 S.W.3d 352 (2018).

Circuit court's consideration of the children's wishes concerning custody is not required, but permissive (two children testified that they wanted to live with their father, while one child testified that she wanted to remain with her mother). Cordell v. Cordell, 2018 Ark. App. 521, 565 S.W.3d 500 (2018).

Circuit court did not abuse its discretion in failing to modify custody based on a child's stated preference; to the extent that the father's argument that the circuit court erred in denying the child's clear desire to live with him referenced the absence of a report of recommendation from the ad litem, the father did not expound on the argument in his brief, failing to even mention it in his argument. Goodman v. Goodman, 2019 Ark. App. 75 (2019).

Presumptions.

Where it was clear from chancellor's remarks that his general view that young girls should be raised by their mothers was given the force of a presumption in deciding custody issue, grant of custody to mother was reversed and remanded. Fox v. Fox, 31 Ark. App. 122, 788 S.W.2d 743 (1990).

Fact that the father had remarried and had a new child did not equate to a change of circumstances, especially where the half-siblings never lived together, and even though the mother's request to relocate to a neighboring state was primarily for personal reasons, the trial court improperly failed to apply the presumption in favor of a custodial parent's relocation in granting father's petition for a change of custody. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003).

In a custody modification case, the court erred by applying the wrong standard where it believed that the natural-parent preference was binding and that it could not deviate from it because determining whether the child was to be better off with one party versus another was precisely what the trial court should have decided; the natural-parent preference and the fitness of that parent were not the absolute determinants in custody-modification matters. Crosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004).

In light of the presumption in favor of relocation and the fact that relocation alone was not a material change in circumstances, the trial court erred in determining the custody issue between the father and mother without addressing the relocation factors; thus, the matter was remanded for the trial court to decide the custody issue in conjunction with those factors. Jowers v. Jowers, 92 Ark. App. 374, 214 S.W.3d 294 (2005).

Although a settlement agreement attempted to shift the burden of proving that relocation was in the best interests of the children to the mother as custodial parent, the mother could not legally waive the Hollandsworth presumption, favoring preserving the custodial relationship in spite of relocation, and, thus, the father had the burden of proving that relocation was not in the best interests of the children. Stills v. Stills, 2010 Ark. 132, 361 S.W.3d 823 (2010).

Judgment awarding custody of the parties' son to the husband was affirmed where (1) there was evidence that the husband was quite capable of being the primary caregiver, as he had been able to handle all aspects of the child's daily routine, including cooking the meals and helping with homework; and (2) although the trial court commented that the child was at a time in his life where it would be a good time to be with his dad, the instant court did not think that this evidenced a bias in favor of the husband. Wise v. Wise, 2010 Ark. App. 184, 374 S.W.3d 704 (2010).

Father suggested that he was at a disadvantage because he would likely have to relocate to secure employment, and that an award of joint custody would facilitate his ability to relocate the children, but even if joint custody were awarded, the presumption in favor of the relocation of a primary custodian was inapplicable when parents shared joint custody. Fox v. Fox, 2015 Ark. App. 367, 465 S.W.3d 18, 465 S.W.3d 18 (2015).

Racial Bias.

In a child custody case, where the mother lived in an interracial household, the trial court used private racial biases as an impermissible basis for awarding child custody to the father; private racial biases and the possible injury that they might inflict are not permissible considerations for the removal of a child from the custody of its natural mother. Tipton v. Aaron, 87 Ark. App. 1, 185 S.W.3d 142 (2004).

Remarriage.

Where, at the time of the original divorce decree, the father knew he was likely to remarry, and voluntarily entered into the agreement to award custody of the child to the mother, the father's remarriage did not constitute a material change in circumstances; the father cannot use the circumstances he created as grounds to modify custody. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).

Specific Findings.

Nothing in the statute requires the circuit court to make specific findings as to every factor that leads to the court's best-interest determination, and the mere fact that the court in this case did not mention these other factors in its opinion or decree did not necessarily mean the trial court did not consider them. Woods v. Woods, 2013 Ark. App. 448 (2013).

Standard of Review.

Appellate court reviews child custody modification cases de novo and reverses only when the trial court's findings are clearly erroneous. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004).

Unmarried Cohabitation.

Trial court erred in refusing to allow a 12-year-old boy to have overnight visitation with his father based solely on the policy of prohibition on unmarried cohabitation with a romantic partner, based on the father's seven-year cohabiting relationship with another man, without considering whether such a prohibition was in the best interest of the child. Moix v. Moix, 2013 Ark. 478, 430 S.W.3d 680 (2013).

Cited: Kimmons v. Kimmons, 1 Ark. App. 63, 613 S.W.2d 110 (1981); Wing v. Wing, 12 Ark. App. 84, 671 S.W.2d 204 (1984); Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997); Office of Child Support Enforcement v. Lawrence, 57 Ark. App. 300, 944 S.W.2d 566 (1997); Gammill v. Hoover, 2011 Ark. App. 788 (2011); Dorrell v. Dorrell, 2014 Ark. App. 496, 441 S.W.3d 925 (2014);Troesken v. Herrington (In re S.H.), 2015 Ark. 75, 455 S.W.3d 313 (2015).