Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Tuesday, December 13, 2005

Case Law Development: Instability of Household and Sexual Immorality as Basis for Change in Custody

The Supreme Court of Arkansas affirmed a change of primary residential custody from Mother to Father.  The trial court had found a change in circumstances justifying the custody order based on Mother's unmarried cohabitation.  The Supreme Court of Arkansas noted that, while moral misconduct is not irrelevant, it would look beyond this single factor to determine whether the custody change was warranted.  It found that basis in the fact that Mother had moved several times: "not only has [Father] remarried and developed a stable family life, but [Mother] has, during the same time period, moved frequently and has been unable to establish a regular schedule and routine for her daughter. [Father], on the other hand, has maintained a stable environment that has been enhanced by his remarriage."

Dissenting judge Betty C. Dickey paints a much different picture.  She notes that Father had paid no child support and "has shown little interest in [his child] until after her mother sought court-ordered child support."  She further notes that Father's behavior was of no higher morality than Mothers.  Regarding the instability of residence used by her colleagues to support the change in custody, she note that this approach "failed to recognize that [Mother's] unstable environment was a direct result of [Father's] lack of participation and the court's failure to require it. ... [Father] did not financially participate in [his child's] care, forcing [Mother] to depend on the charity of her family and friends for financial help and living expenses."

Alphin v. Alphin, 2005 Ark. LEXIS 757 (December 8, 2005)
Opinion on the web at (last visited December 11, 2005 bgf)

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