Moore v. Jordan

George Rose Smith, Justice. This is a child custody case. When the parties were divorced in May, 1968, their daughter, Michelle Moore, was four months old. At that time the child’s mother, now the appellee, was only twenty and had no home to which to take the child. Consequently the decree provided, by agreement, that custody was awarded to the child’s father, now the appellant. Moore was then living with his own parents, the Floyd Moores. The award of custody was conditioned upon the child’s being cared for by Mrs. Moore, Sr. In June, 1969, the appellee married her present husband, Michael Jordan. The couple moved into the home of Michael’s parents, a Presbyterian minister and his wife. The appellee then filed the present application for a change of custody. Michelle was two and a half years old when the petition was heard. In granting the petition the chancellor made oral findings in which he stressed (a) the law’s settled preference for custody in the mother when an infant girl is involved, and (b) the fact that this young mother is physically and morally capable of bringing up her own child. We do not agree with the appellant’s contention that the chancellor felt compelled under the law to grant custody to the appellee. As we read the chancellor’s findings, he exercised his discretion in the matter. We agree with his decision. With respect to change of circumstances we had this to say in a closely parallel case: “At the time the father was given the custody of the children, the mother had no home, no way of supporting them, and no place to take them; but now she has a good home, a good husband, and a place for them. Thus there is a change of circumstances and we can not say that the court’s order changing the custody of the children is not justified by the situation of the parties as it now exists.” Carlton v. Carlton, 223 Ark. 870, 269 S. W. 2d 513 (1954); see also Langston v. Horton, 229 Ark. 708, 317 S. W. 2d 821 (1958). Apart from the change of circumstances, other proof supports the chancellor’s decision. There is no real question about the appellee’s good moral character. It is true that she had an earlier marriage and divorce before she married the appellant, but that unfortunate experience on the part of an eighteen-year-old girl certainly does not call for a forfeiture of the precious privilege of bringing up her own infant daughter. When the case was heard, the appellee and her husband were both 22 years old. Michael had completed his plans for entering the study of the ministry in the fall. While he had never seen the child, that was because the appellant had told the appellee not to bring Michael to the Moore’s houce, “because there would be trouble.” Michael appeared as a witness in support of his wife’s petition, stating his intention of giving to Michelle the same love that he would give to his own child. . There is no question about the fine qualities ot the Floyd Moores, a couple in their early fifties, who cared for Michelle during the two years just preceding the hearing in the court below. They are, however, the child’s grandparents and naturally do not have a claim to custody as strong as that of the child’s own mother. Moreover, some dislocation of Michelle’s family ties is foreseeably unavoidable in any event. At the time of the trial the appellant was planning to remarry and to take Michelle to his new home eventually. Both he and his father testified, however, that Michelle was so deeply attached to her grandparents that the transition to the new home would have to be gradual. As the appellant put it: “We would leave her with my mother until we could work up to it.” With that attitude on the part of both the father and the grandparents there is certainly a reasonable probability that the transition would not be an ideal emotional experience for the child. The chancellor might well have been unfavorably impressed by the appellant’s manifest reluctance to take a step that should be taken as quickly and as painlessly as possible. Affirmed. Fogleman, J., dissents.