Moix v. Moix ____ S.W.

3d ____ (Ark. 2013)

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Nature of the Case

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Facts

H and Libby (W) were divorced in 2004. The parties' settlement agreement provided that the parties would share joint custody of their three sons. W was to serve as the primary custodian and H was to receive reasonable visitation. The settlement agreement also stated that neither party was to have overnight guests of the opposite sex. In May 2005, W filed a petition to modify visitation. H had been having a romantic relationship with a live-in male companion and that the children had been exposed to that relationship on multiple occasions. W claimed that H and his partner had recently separated after they were involved in a physical altercation in which H was seriously injured. They had since resumed their relationship and were again residing together. W asked for sole custody of the children and limit H's visitation in such a way as to limit the children's exposure to the illicit relationship and the danger caused by the volatility of his companion. W would receive full custody of R.M., who was five years old at the time. The order also restricted H to visitation with R.M. on every other weekend and every Wednesday, with no overnight visitation. The order was not followed, and H had liberal overnight visitation with R.M. until late 2009 or early 2010, when he became addicted to prescription drugs and sought inpatient treatment after being involved in a hit-and-run accident. H was limited to daytime visitation at the discretion of W. In May 2012, H filed a motion for modification of visitation and child support. W had remarried in 2010 and that she had informed him that R.M. had a new father and no longer needed him. H requested that the circuit court modify visitation to allow overnight visits, as well as holiday and extended summer visitation. W pointed to H's arrest for driving while under the influence of prescription drugs and the fact that he had lost his pharmacist license. W alleged that H's relationship with his boyfriend had been volatile and that it was not in R.M.'s best interest to have overnight visitation in such an environment. H claimed he was sober and under a ten-year contract with the pharmacy board, pursuant to which he had been able to regain his pharmacist license, and that he has to call every morning to see if he must undergo a drug screen. H had undergone fifty-nine random drug screens, all of which had been negative. He testified that he has also been regularly attending AA and NA meetings as required under the contract. H testified that he and Chad had never slept in the same bed during any of R.M.'s previous visits and that if overnight visitation were again allowed, he would continue to abstain from bed sharing or other romantic behavior in the presence of his son. Chad also has a son from his previous marriage who often stays overnight at their home and that R.M. and Chad's son have a close relationship that would be greatly hindered if Chad were not allowed to be present during any overnight visits. H and Chad had not had any altercations since the one in 2005, which did not occur in the presence of R.M. The two older sons had lived with H during their senior year in high school, that they continued to spend weekends at his home during college, and that one of his sons is moving back home. H testified that all of his children are happy and emotionally, mentally, and physically stable. Chad was a registered nurse at a hospital focusing on children and adolescents with behavioral health issues. He has had to pass multiple state and federal background checks as a condition of his employment. Chad produced three witnesses all who testified to him being a good person. W testified that she had found needles when cleaning the guest bedroom at H’s home. She said H had told her Chad was abusing steroids. W admitted that R.M. had a loving relationship with H. Chad denied using intravenous drugs. The court granted H’s motion for modification. The court found that it was required by the public policy of the state to impose a non-cohabitation restriction preventing Chad from being present during any overnight visits. The court found that Chad posed no threat to the health, safety and welfare of R.M. H appealed.