Rectifying Negative Situation Can Change Landscape of Custody Case Prior to Hearing
Many times something or someone happens that causes the non-custodial parent to file for custody. Oftentimes this involves a new significant other in the custodial parent's life.
In Hudson v. Hudson (Arkansas Court of Appeals, May 2, 2012) the trial court was faced with just such a situation. However, the custodial mother had rectified the situation by getting rid of her new boyfriend prior to the hearing, and getting an Order of Protection to boot. Should this be enough to get her out of hot water? The trial court said yes, finding that there was not a significant change in circumstances that would warrant a change in custody. The non-custodial father said no and appealed.
The father appealed only on the issue of whether there had been a change in circumstances. He cited that his 9-year-old daughter was continuing to have emotional problems due to the former boyfriend's actions. He cited examples of her behavior to the court, including the fact that she remains terrified at times to go to sleep because the boyfriend at one time had threatened to burn their house down and kill their dog. She's now afraid at times that her house will burn during the night while she is sleeping. (See full opinion for further facts about her emotional problems.)
All of this seems to be pretty persuasive stuff. However the Court of Appeals affirmed the trial court, finding:
The trial court found that the situation of former concern had been resolved, and it found no significant change in circumstances affecting M.H.’s best interest or jeopardizing her well being and warranting a change of custody. Based on our de novo review and giving due deference to the superior position of the circuit court to evaluate the witnesses, we find no clear error in its decision not to change custody.