Settle v. Meyers

Lyle Brown, Justice. This is a child custody case. Custody having previously been awarded the appelleefather, the appellant-mother filed her petition alleging a change in circumstances. The court held that no change in circumstances was shown. On appeal the mother contends that a substantial change in conditions was established, that the best interests of the child would be served by giving custody to the mother, and that the mother is entitled to custody of the five-year-old daughter under the equities in the case. The father was awarded a divorce in September 1970. He was given custody of the child but the mother was to have possession of the child during week days. Four months later the father petitioned the court for modification of the custody and visitation order. He alleged that three days after the divorce the mother married her paramour. After hearing that petition the court gave the child to the father during week days and to the mother on week-ends. There was no appeal from that order which was entered January 5, 1971. In April 1971 the mother filed the petition which is now before us. She alleged that the little girl slept in bed with the father; that she was not kept clean; and that the father worked long hours and left the child with a baby sitter. The mother averred that she had a good home, was financially able to support the child, and would devote full time to the care of the little girl. The mother is a nurse and at the time of trial was working full time but said she would quit her job if the requested custody rights were vested in her. After an extended hearing the court found no substantial change in conditions. The previous order, however, was modified by changing the mother’s visitation rights to two nights during the week and two weeks in the summer. Nothing seriously critical can be said of the parents. Both are very fond of the child and the child is devoted and happy in the custody of either parent. However we do find two significant changes in circumstances which persuade us to believe that the welfare of the little girl dictates that she should be in the custody of the mother. The work hours of the father are not conducive to the best interest of the child. The child is taken to school at seven o’clock in the morning and the father is not avail-to her until five o’clock or after, depending on whether he works overtime. In February 1971 the father earned $102.60 at overtime; in March, $117.15; and in April, $222.75. Those figures indicate a considerable increase in overtime each succeeding month. The second essential change in conditions is the status of the mother. She is now financially able to quit a full time job as nurse and to devote complete attention to the rearing of the little girl. The factors we have recited — the part-time presence of the father and the full time attention of the mother— become still more important when we consider the attitude of this court in choosing between the father and the mother for the rearing of a girl of tender years. “[TJhere is much wisdom in the view, expressed many times in our reports, that a mother is better fitted than a father to take care of a very young child — especially a girl.” McDaniel v. McDaniel, 224 Ark. 371, 273 S. W. 2d 406 (1954). Custody is granted the mother subject to the right which we vest in the father to have the child visit him during week-ends. Reversed and remanded. Fogleman, J., dissents.