Grove v. Grove

Citations: 386 S.W.3d 603; 2011 Ark. App. 648; 2011 WL 5253033; 2011 Ark. App. LEXIS 700Docket: No. CA 11-173

Court: Court of Appeals of Arkansas; November 2, 2011; Arkansas; State Appellate Court

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Appellant Kristi Grove contests the Garland County Circuit Court's order granting custody of her two children, AG and RG, to their father, Jeffrey Grove, and imposing supervised visitation for her. The court found a material change in circumstances and determined the custody shift was in the children's best interests. Kristi claims on appeal that the trial court abused its discretion by relying on expert testimony regarding Parental Alienation Syndrome (PAS), arguing it fails the Daubert standard for scientific evidence admissibility. She also asserts that the custody and visitation decisions are clearly erroneous. 

The parties divorced on August 10, 2004, with Kristi initially awarded custody. In June 2006, Jeffrey petitioned the court for contempt and modification of visitation, citing Kristi's alleged alienation efforts. A family psychological evaluation was ordered, leading to Dr. Paul Deyoub's May 2007 report, which indicated Kristi and her family were attempting to alienate the children from their father through false abuse claims. In November 2007, a consent order established joint custody, primarily favoring Kristi, with stipulations regarding visitation, communication about the children, counseling, and Kristi’s participation in a program designed to mitigate parental conflict.

On February 24, 2009, Kristi sought a custody change, claiming changed circumstances warranted sole custody. Jeffrey countered, alleging Kristi's noncompliance with the 2007 order and continued alienation of the children. The court allowed another evaluation by Dr. Deyoub, who, in his September 2009 report, reiterated that Kristi and her parents were influencing the children against Jeffrey and recommended that Jeffrey be granted primary custody. Kristi then requested a psychological evaluation by Dr. Warren Seiler Jr., who, in his December 2009 report, supported the earlier findings, expressing concern over the children being pressured to view their father negatively and suggesting that Kristi should not maintain primary custody.

Full custody of the children was awarded to Jeffrey, with Kristi receiving supervised visitation, following hearings on December 18, 2009, February 10, 2010, and April 27, 2010, during which multiple witnesses testified. On May 27, 2010, the trial court issued a letter opinion confirming this decision, which included Kristi's obligation to pay child support and maintain insurance for the children. The formal order, entered on September 1, 2010, stated that a significant and material change of circumstances warranted this custody arrangement, citing Kristi's non-compliance with the Joint Custody Agreement, interference with visitation, refusal to cooperate in mandated counseling, efforts to alienate the children from Jeffrey, conduct aimed at limiting his contact with them, and the allowance of false accusations against him in the children's presence. Kristi appealed the decision, arguing that the trial court improperly relied on expert testimony regarding Parental Alienation Syndrome (PAS), claiming it did not meet the Daubert standard for scientific evidence admissibility. The court noted that the admission of expert testimony is reviewed under an abuse-of-discretion standard and found Kristi's argument on the PAS evidence unpreserved for appeal, as no objections were raised during the trial regarding this testimony. Consequently, the court affirmed the trial court's ruling. Kristi also contended that the trial court erred in the custody decision due to insufficient evidence of a material change in circumstances, specifically disputing claims of her failure to adhere to the visitation schedule, cooperate in counseling, or alienate the children from Jeffrey.

Kristi argues that the custody change is not in the children’s best interest, asserting she is the superior caregiver based on her role as the primary caretaker, active involvement in their education and activities, stable employment, and financial support for their private schooling. She contrasts this with Jeffrey’s alleged deficiencies, including his lack of participation in the children's lives, financial instability, failure to pay child support, issues with alcohol, multiple romantic relationships post-divorce, and a combative nature. The standard of review in child custody cases involves de novo consideration of evidence, with the appellate court deferring significantly to the trial court's findings unless they are clearly erroneous. The court emphasizes the trial court's superior ability to assess witness credibility in custody matters, where the child's welfare is paramount. For custody or visitation modifications, the moving party must demonstrate a material change in circumstances. Relevant factors for visitation include the child's wishes, the caregiver's capacity, transportation issues, party stability, and relationships with relatives. The trial court determined that Kristi violated the custody agreement, failed to cooperate in counseling, alienated the children from Jeffrey, and allowed false accusations against him, leading to the conclusion that its findings were not against the preponderance of the evidence.

Jeffrey provided testimony indicating Kristi's non-compliance with a prior custody order, detailing how she consistently obstructed his visitation rights since the 2007 consent order. Specifically, he reported a lack of regular phone visitation for seven months, only having one Thanksgiving holiday with his children in six years, and being excluded from Halloween activities. Kristi canceled a weekend visitation without a doctor's excuse and failed to reschedule, as well as canceled counseling sessions for the children, which was confirmed by the counselor, Ms. Gladden. 

The trial court found overwhelming evidence of Kristi alienating the children from Jeffrey, including her initiation of a custody action aimed at obtaining sole custody and eliminating Jeffrey’s visitation. Recommendations from Drs. Deyoub and Seiler suggested that primary custody should be given to Jeffrey, with Kristi receiving only supervised visitation due to her and her parents’ efforts to manipulate the children into believing Jeffrey was a harmful figure. This included coaching the children to lie about Jeffrey, which the doctors confirmed had no supporting evidence. 

Dr. Seiler noted the children's serious issues with dishonesty, asserting they lied even when faced with undeniable facts. Kristi, despite testifying she did not believe the allegations made by the children, reported them as truth to the doctors. Dr. Deyoub described Kristi’s behavior as 'sick' and damaging to the children. Jeffrey observed behavioral changes in the children, who appeared distant, and Kristi acknowledged her child's anxiety.

The court referenced precedents where continuous unfounded allegations and parental alienation constituted a material change in circumstances. The evidence from Kristi’s actions supported the trial court’s decision that a change in custody to Jeffrey was in the best interests of the children, resulting in the affirmation of the custody ruling.

Jeffrey requested the appointment of an attorney ad litem for the children, which the trial court approved. A variety of witnesses were called, including mental health professionals, educators, family members, and others connected to Jeffrey and the children. The record contains serious, unsubstantiated allegations against Jeffrey, including claims of alcoholism, physical abuse (such as locking children in a closet, excessive spanking leading to injury, and physical assault), neglect (including locking children outside overnight), and exposing the children to inappropriate content.