Title: Arkansas: Appeals Court Holds that Change of Visitation Shall Not Occur (BY: Tammi B.)

Link for option: http://opinions.aoc.arkansas.gov/WebLink8/Browse.aspx?startid=39308 The Arkansas Court of Appeals held in Nichols v. Teer, 2014 Ark. App. 132 (2014) that the mother, Tasha Nichols, had not carried her burden of proving that there had been a material change of circumstances enough to allow for a change in her visitation rights. Tasha Nichols and her former husband Troy, filed for divorce in May 2009. The divorce was granted on July 9, 2009 and at the time of the decree Troy was granted permanent custody of their four children. On July 31, 2010 Troy’s parents, Teresa and Roger Teer sought custody of the children under the claim that neither of the parents had a stable home to offer the children. A hearing was held for the Teer’s case on August 5, 2010 at which Tasha agreed that the Teer’s should have custody of the children. The Teer’s case was held on October 21, 2010 after which the court awarded them permanent custody and Tasha was awarded supervised custody and was ordered to pay child support. Tasha’s visitations were allowed to take place either at her mother’s home or at a child visitation and exchange center called Family Matters, to be paid for at Tasha’s expense. Tasha petitioned to the court on February 16, 2012 for a change in custody stating that she had undergone material changes of circumstances such as acquiring and maintaining a job for the past six months, as well as a steady home for the past six months. The law is clear that [t]he party seeking modification of the custody order has the burden of showing a material change in circumstances. Alphin v. Alphin, 364 Ark. 332, 219 S.W.3d 160 (2005). In order to change custody, the trial court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold requirement is met, it 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). The Court found that Nichol’s failed in her burden to prove material changes in circumastance and the children were left in the custody of their grandparents, the Teers. During the trial Nichol’s stated that her visitation with the children had been disrupted and denied by the Teer’s. The Teer’s denied this claiming that Nichol’s had failed in filling out the application for the intended visitation place, Family Matters, as well as failed to schedule the visits. The trial court found that the testimony of the Teers was credible; accordingly, it weighed the evidence in their favor. We defer to the trial court's superior position to view and judge the credibility of the witnesses. Preston, 2014 Ark.App. 58, at 2. Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Anderson v. Thomas, 2013 Ark.App. 653, at 2. The best interest of the children was deemed to be remaining with the Teer’s. In reviewing child-custody cases, we consider the evidence de novo but will not reverse a trial court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Preston v. Preston, 2014 Ark.App. 58, at 2. Since the initial trial did not have any errors in their original findings for the custody of the children the Court affirmed the decision to deny a change of custody.